The National Labor Relations Board (NLRB) is the Federal entity that enforces the National Labor Relations Act (NLRA). The NLRA regulates the “collective action” of employees. While this sometimes involves the activities of an organized union, it does not have to. Under the NLRA, all workplaces are in a state of pre-unionization, if they are not already unionized. Employees in that setting have rights that are called “Section 7” rights, and generally include activities by employees working together to improve the “terms and conditions” of their employment, such as their wages, working hours, promotions, terminations and disciplinary actions.
In the past year or so, the NLRA has taken an interest in employers’ social media policies. In the past, employers issued policies that limited an employee’s ability to blog or post on Facebook or elsewhere about issues that related to his or her workplace. Employees who continued to do so often were terminated, and some filed complaints with the NLRB that their terminations violated their Section 7 rights. On one hand, this seems absurd – if an employee blasts off about how horrible their center is or how awful their coworkers are, they should be terminated, right? However, the NLRB disagrees, because the employee’s speech may really be about protecting their working conditions and the working conditions of their colleagues.
In May 2012, the NLRB issued a memorandum reviewing seven social media policies. Each of the first six policies was found to be almost entirely unlawful (32 out of 42 individual statements reviewed by the NLRB were found unlawful). The seventh policy, however, was found to be “lawful in its entirety” and the NLRB attached a copy of the complete policy.
In general, the NLRB found unlawful any policy statement that an employee could conceivably interpret as prohibiting (or even discouraging) any type of Section 7 activity. On the other hand, those policy statements that an employee could not conceivably interpret as prohibiting any type of Section 7 activity were found lawful. While both lawful and unlawful policies used examples to clarify their scope, the examples in lawful policies typically focused on illegal or “clearly egregious” conduct (e.g., “such conduct might include offensive posts meant to intentionally harm someone’s reputation or that could contribute to a hostile work environment on the basis of race, sex, disability, or religion.”)
As you might guess, this context-dependent determination makes for highly nuanced distinctions and difficulty in predicting what the NLRB may deem unlawful. To say the least.
For example, consider the following:
Example 1:
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. [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.
LAWFUL: Also, keep in mind that you are more likely to resolve 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.
Example 2:
UNLAWFUL: Employees are prohibited from posting information regarding [Employer] on any social networking sites … that could be deemed material non-public information or any information that is considered confidential or proprietary. Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans and schedules. [Note: In addition to the “obviously” unlawful prohibitions against releasing information related to shutdowns or work stoppages, the NLRB also found that information related to company performance, cost increases, and customer wins or losses has “potential relevance” in collective-bargaining negotiations].
LAWFUL: Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
Example 3:
UNLAWFUL: You must also be sure that your posts are completely accurate and not misleading.
LAWFUL: Make sure that you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly.
In making distinctions between the “unlawful” and “lawful” policies above, the NLRB focused mainly on whether the context of the surrounding information left the employee with the impression that the prohibition pertained only to non-Section 7 activity, or whether it might, under some circumstance, somewhere, pertain to Section 7 activity as well.
In addition, the NLRB found the following policies unlawful:
- Unless you are specifically authorized to do so, you may not participate in social media activities with Company resources and/or on Company time.
- Respect proprietary information and content, confidentiality, and the brand, trademark, and copyright rights of others. Always cite and obtain permission when quoting someone else. Make sure that any photos, music, video, or other content you are sharing is legally sharable or that you have the owner’s permission.
- Offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.
- Think carefully about “friending” co-workers.
The NLRB found that savings clauses (i.e., “nothing in this policy should be read to prohibit an employee from exercising his/her Section 7 rights”) were not unlawful, but also did not cure otherwise unlawful provisions in an employer’s social media policy, even if they included detailed information regarding the types of protected activity.
Finally, the NLRB’s position on social media issues is not limited to their appearance in social media-specific policies. Rather, the NLRB also reviewed and found unlawful employer confidentiality, electronic communications, media relations, and government relations policies.
Unfortunately, this is all clear as mud. The takeaway here is to review your policies and be exceedingly cautious before you terminate an employee for posting about their work in social media.
Emily J. Powell is an Associate at Ireland Stapleton Pryor & Pascoe, PC. In her employment practice, Powell assists employers and businesses with employment-related transactional matters, such as preparation of employee handbooks, employment agreements, job descriptions, and in identifying and preventing areas of potential workplace disputes. Powell also assists child care centers with state licensing issues and compliance with local, state and federal regulations. She can be reached at 303.628.3629 or epowell@irelandstapleton.com.
This article is intended as a general discussion and information on the topic covered and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.