In the new world of social media, many employers are now implementing policies regulating employee behavior on such venues. In doing so however, employers could be subjecting themselves to their own legal scrutiny. In May of 2012, the National Labor Relations Board issued its third report in the past year on social media cases. In its report, the NLRB discusses its general view of social media policies rather than focusing on specific discharge situations as it did in its prior two reports. The NLRB’s most recent report focuses on various employer policies restricting employee conduct on social networks. In both its criticism and praise of these policies, the NLRB sheds some light on what it believes to be a lawful social media policy.
The NLRB’s report focuses particularly on policies that could be perceived as prohibiting employee activity protected by Section 7 of the National Labor Relations Act. Section 7 of the Act provides that employees shall have “the right to self organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB, perhaps as it should, seems to place the burden on employers to craft social media policies that its employees can easily understand. It goes a step further by seemingly invalidating policies that employees could possibly interpret as inhibiting Section 7 activities. While the NLRB’s view on social media policies is painted with a broad brush, it seems focused on eliminating ambiguous and vague policies.
For example, the NLRB disfavored a rule “encouraging” employees to resolve concerns about the work place by speaking with co-workers, supervisors or managers as unlawful because it would have the likely effect of discouraging or precluding Section 7 protected activities such as seeking redress through alternate forums. Nonetheless, the NLRB did endorse a policy instructing employees to “keep in mind that [employees] are more likely to resolve work-related complaints by speaking directly with their co-workers or by utilizing their open-door policy than by posting complaints to a social media outlet.” The subtle differences between these two policies was enough to allow the NLRB to differentiate between what it considers to be good and bad policy – suggesting or encouraging a course of action that could infringe upon protected rights versus reminding employees of the viability of their options.
When it comes to illegal behavior such as harassment, bullying, and discrimination retaliation, the NLRB is clear that an employer may prohibit this type of behavior in social media outlets whether it is done at home, in the office, during business hours or after business hours. While the NLRB makes it clear that an employer has every right to enact policies precluding its employees from engaging in illegal activities such as online harassment of co-workers, it also makes clear that an employer may not go so far as adopting a policy stating that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” The explanation proffered by the NLRB to differentiate between these two policies is that the former precludes independently illegal activity while the latter “proscribes a broad spectrum of communications that would include protected criticisms of the employer’s policies or treatment of employees.” Once again, the prospect of violating an employee’s rights under Section 7 of the Act appears to be the benchmark for whether the NLRB considers a policy to be unlawful.
Employers should be able to gain some insight from the NLRB as to what may be perceived as lawful or unlawful social media policies. First and foremost, employers should avoid language that in any way could be perceived as infringing upon an employee’s rights under Section 7 of the Act. If a policy could be seen as restricting these rights, it will likely be seen as unlawful. Second, as with most legal documents, an employer should aim to be as specific as possible and avoid ambiguity so that others do not have to speculate as to their intent. Avoiding these pitfalls could save employers the time and money of defending policies that are for the benefit of their employees in the first place.