The National Labor Relations Board (“NLRB”) has made it extremely difficult for employment lawyers to advise their clients on social media usage policies. Over the last two (2) years, the NLRB has been aggressive in its regulation of employers’ social media policies. The rulings by the NLRB, however, have been inconsistent. In particular, the NLRB has focused on the precise wording and language used in employment handbooks. The stated goal of the NLRB is to ensure that employers are not violating Section 8(a)(1) of the National Labor Relations Act (the “Act”) by implementing a work rule that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Although the NLRB’s yardstick in this area is apparently flexible rather than rigid, a careful understanding of its opinions can help employers regulate social media usage more effectively.
Inconsistent NLRB Rulings on Social Media Policies
The Act prohibits employers from infringing on employees’ rights to discuss their employment including, but not limited to, wages and working conditions. The Act further protects the right of employees to engage in “concerted activity” with respect to wages and working conditions. With the foregoing in mind, it is important to understand that the NLRB’s review of social media usage policies tends to be subjective. Clearly, if a social media policy is developed in response to union activity or is applied in such a way as to restrict employees from engaging in concerted activities or discussing their wages and/or conditions of employment, the NLRB will view the policy to be violative of the Act. The NLRB’s rulings become unclear when it assesses whether “employees would reasonably construe the language [of the social media use policy] to prohibit Section 7 activity.” For example, the NLRB has found that the following language could be reasonably interpreted by employees as prohibiting them from discussing or criticizing the employer’s labor practices:
If you engage in a discussion [on social media websites] related to [employer] . . . you must also be sure that your posts are completely accurate and not misleading . . . .
The NLRB declared the above provision unlawful. However, the NLRB approved the following language in a later action:
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly.
Although these provisions appear to be similar, the NLRB has struck one while allowing the other. Similarly, the NLRB has found the following provision to be unlawful:
You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet.
However, the NLRB later found the following to be lawful:
[K]eep in mind that you are more likely to resolved [sic] work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet.
Additionally, simply including a blank “savings clause” in an employee handbook will not be enough to save your social media usage policies from running afoul of the Act. A recent action before the NLRB dealt with review of an employee handbook that contained the following language:
[Employer’s] Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act).
The NLRB concluded that this language was insufficient to “cure the ambiguities in the [social media] policy’s overbroad rules.
As demonstrated by the above discussion, it is important that employers exercise considered judgment in implementing or revising a company’s social media usage policy. The NLRB has created a minefield for employers seeking to regulate their employees’ social media usage, and without a thorough understanding of NLRB rulings, an employer may inadvertently run afoul of the law trying to control employee social media usage.
It is critical that employers seek legal counsel before introducing or revising social media usage policies. If you are interested in learning more about this topic or crafting a social media policy, please e-mail us at firstname.lastname@example.org, or call us at (212) 246-0900.