Social Media Policies - the NLRB is Making Me Crazy Will your Social Media policy get you in trouble?

By Lauraine Bifulco May 2, 2012

Most business owners and HR professionals with non-unionized employees have had a tendency to turn a blind eye on the National Labor Relations Board. We know that the National Labor Relations Act gives our employees the right to organize, but other than that, we don’t think it impacts our day-to-day management all that much. Think again!

In recent months, the NLRB has issued two lengthy memoranda regarding the legality of employers’ social media policies and practices.

The NLRA provides certain protections to non-supervisory employees including the right to organize and to engage in other “concerted activities.” Specific examples include employees’ efforts to improve working conditions and terms of employment, including discussions of wages and benefits. Employers are not allowed to prohibit such protected activity, nor are they allowed to do anything to discourage, dissuade, or have a “chilling” effect on these activities.

To get a true flavor for what we’re dealing with, here are some examples of policies that the NLRB described as illegal:

  • A policy that “prohibited employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.”
  • NLRB’s reasoning – deemed unlawful because it did not provide a definition or guidance as to what the employer considered private or confidential and, as such, could reasonably be interpreted as prohibiting things such as a discussion of wages or other working conditions.
  • A policy that “prohibited any communication or post that constitutes embarrassment, harassment or defamation of the [Company] or of any [Company] employee, officer, board member, representative, or staff member.”
  • NLRB’s reasoning – the statements were overbroad and could be interpreted as prohibiting employees from discussing working conditions.
  • A policy that “prohibited defamation of the [Company].”
  • NLRB’s reasoning – “an alleged defamatory statement will not lose its protected status unless it is not only false but maliciously false.” OK, so now it’s illegal to have a policy that states that employees are prohibited from doing something illegal?
  • A policy with a prohibition against “statements that lack truthfulness or that might damage the reputation or goodwill of the [Company], its staff, or employees.”

NLRB’s reasoning – the statements were overbroad and would commonly apply to protected criticism of the employer’s labor policies or treatment of employees. Again, now we’re not allowed to tell employees that they have to be truthful? Help!

Is this making you crazy yet?

So, from a practical perspective, what can an employer do? First of all, think long and hard about whether or not you even want to try to have a company policy on social media. It might not be worth it. Secondly, if you have a policy or decide to craft one, be very careful. Then, go back and revisit your entire employee handbook and other employment agreements. Even outside policies on computer usage and social media likely contain language on privacy, confidentiality, employee conduct, etc. that may now be questionable in the NLRB’s eyes. Finally, whether or not you have a written policy, before taking any adverse action against an employee for actions that might fall into this very broad spectrum of concerted protected activity, seek help from a professional with experience in employment law.

And stay tuned. We have certainly not heard the last of this topic. HR professionals need to share our resources with one another to help prevent any of us from being “un-friended” by the NLRB!

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