Focus, Law, and Technology

Social media impacts National Labor Relations Board decisions

Employees’ communication ‘playground’ is now much less restrictive.

May 23, 2014
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(As seen on WZZM TV 13) The rise of social media during the past decade has made many employers wary about what sort of negative comments or information employees might share via Facebook, Twitter or other favored social media websites.

In an effort to quell any negative PR or bad blood within the company due to an employee’s social media rant, some companies have instituted policies that outline what sorts of social media posts might be subject to disciplinary action or even termination.

Legally, however, many of those attempts to restrict what an employee can say about the company via his or her own personal social media account have been found to be in violation of employee rights.

In addition to an employee’s freedom of speech rights, a company’s restrictive social media policies might also violate the National Labor Relations Act, which covers workers’ rights to protected concerted activities and includes unionized and nonunionized employees.

Rhoades McKee attorney John Lichtenberg said recently he has seen the National Labor Relations Board take on cases concerning social media policies, as well as email policies, and companies might find the organization’s decisions surprising.

“The NLRB is starting to look at those policies and saying, ‘No, that’s really not a fair or reasonable restriction to put on employees in this 21st century,’” he said.

“Some of it is responsive to changes in technology and how we communicate with one another, but the net effect of it is to really open the playground much wider for employees to be able to communicate with one another without fear of retaliation or punishment.”

Lichtenberg said a recent decision had to do with a case in which an employer told employees they weren’t allowed to post anything bad about the company on social media. He said the problem with such a policy is that the definition of “anything bad” is too broad.

An employee could understand that kind of language to mean he or she cannot turn to social media to complain about things that, under the National Labor Relations Act, are considered protected concerted activities and cannot be restricted by employers.

“The problem is if you don’t define what the confidential information is, (then) what the NLRB is saying is that is really too broad because an employee might understand that you are saying they aren’t allowed to share their wage rates with other employees, or even to publish their wage rates on their Facebook page and say, ‘My employer is a cheapskate,’” Lichtenberg said.

Lichtenberg said the NLRB believes these policies could have a chilling effect on workers exercising their right to protected concerted activity, and as a result the organization has started finding employers with broad social media policies guilty of unfair labor practices.

Some of the employers who find themselves in the NLRB’s crosshairs haven’t been paying too much attention to the organization because they don’t have a unionized workforce, but Lichtenberg said those employers don’t realize the NLRB has a responsibility to protect nonunionized employees’ rights as well as those who are union members.

“If you really look at the act, and the history of the act, it is really intended to protect workers who are not unionized,” he said.

Lichtenberg said social media is becoming a battleground for the assertion of basic employee rights to communicate, organize, and to work and share information together, and all employers need to be aware of the NLRB’s decisions regarding social media as an avenue for protected concerted activity by employees.

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