NLRB focuses on social media

June 25, 2012
| By Pete Daly |
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If your company has a policy relating to employee use of social media — or is just about to implement one — would it stand up under scrutiny by the National Labor Relations Board?

A Grand Rapids attorney with 30 years’ experience in labor law said he believes many such policies, which are proliferating due to the massive popularity of social media websites, are not consistent with the NLRB’s position.

Bob Sikkel of Barnes & Thornburg said a memo released May 30 by the board’s Office of General Counsel creates a situation employers cannot afford to ignore.

The first reason for concern is that this is the third NLRB memo involving social-media issues that has come out in less than a year. That fact alone, said Sikkel, “sends a message that the NLRB is clearly focused (on social media), and that this is a priority to the National Labor Relations Board.”

For those employers who have implemented social media policies, in view of the position of the NLRB and its current interpretation of the law, “We would expect under the NLRB memorandum that many of those policies are flawed and are not consistent with the NLRB’s position,” added Sikkel.

“Not only is the NLRB focused on social media policies,” he said, “but focused on what we call Section 7 rights of employees to engage in protected concerted activity. Many employers think the NLRB only applies if they have a union, and that’s not true. All these reviews of social media policies protect concerted activities — these all can be violations of the National Labor Relations Act in a non-union setting.”

Section 7 gives employees the right to form, join or assist labor organizations, and also guarantees them the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, according to a Barnes & Thornburg publication.

“I think we are seeing the NLRB becoming more aggressive in terms of almost marketing the fact that non-union employees have rights and remedies under the act,” added Sikkel.

A Barnes & Thornburg overview of the May 30 memorandum notes that it remains to be seen if the courts will support the interpretations, but the law firm urges employers to “proceed with great caution” when drafting and enforcing social media policies pertaining to employees.

The NLRB website also includes specific cases where employees got in trouble because of their use of Facebook and YouTube, but were subsequently deemed within their rights under labor law. In one case, construction workers were fired when they made a YouTube video complaining of hazardous working conditions, even though they had tried to hide their faces in the film. The NLRB said they accurately described the working conditions.

In another case, a paramedic criticized her supervisor in a Facebook posting, to which other employees replied. In firing the woman, the company relied on its Internet use policy, but the NLRB said that was protected concerted activity — and the federal agency also charged that the company had illegal provisions in its employee handbook, including prohibiting employees from making negative comments about the company or its supervisors.

The May 30 memo from NLRB’s acting general counsel, Lafe E. Solomon, addressed seven social media policies from a variety of employers; six contained numerous provisions he deemed unlawful.

The Barnes & Thornburg overview states that “employers will be surprised to see the variety of contexts in which even the most well-intentioned company might find itself in hot water.”

Sikkel said most of the new social media policies are attempts by companies to prevent their employees from putting the company’s confidential information and trade secrets on the Internet, and to “limit the overall chatter on the Internet about the employer.”

An attempt by an employer to protect confidential information might inadvertently run afoul of the National Labor Relations Act, according to Barnes & Thornburg. For example, a policy prohibiting employees from online discussions regarding “confidential guest, team member or company information” was deemed too vague and too broad. In his memo, Solomon said the policy could be interpreted as prohibiting employees from discussing and revealing information regarding their own terms and conditions of employment — a clearly protected activity under Section 7.

“Social media policies designed to maintain harmony in the workplace might also present a pitfall for well-intentioned employers,” states the overview. “For example, a policy’s warning not to ‘pick fights’ and to avoid ‘controversial topics’ when engaging in online discussions failed to pass muster.”

Solomon said the purpose of the policy was to caution employees against online discussion on topics that could become heated or controversial, but since working conditions or unionism are topics with the potential to become heated and controversial, the policy could reasonably be construed as inhibiting Section 7 rights. Likewise, a provision encouraging employees to discuss concerns about work internally rather than airing grievances online was unlawful because it could inhibit workers from seeking redress through alternative forums.

An employer found itself in trouble with its employee policy about how its communications department was solely responsible for discussing company information with media outlets — and it considered blogs and message boards to be media.

“Employees have a protected right to seek help from third parties regarding their working conditions,” said Solomon, and employers may not restrict social media comments or prohibit them from talking to the news media or blogging.

“Even seemingly innocuous provisions within a social media policy may not escape heightened scrutiny,” states Barnes & Thornburg. “An employer’s admonition to ‘think carefully’ about connecting with co-workers was unlawfully overbroad. The general counsel explained that the policy could be construed as limiting communications among co-workers, and thus interfere with Section 7 activity. Likewise, an instruction to report ‘any unusual or inappropriate internal social media activity’ could be construed as encouraging employees to report to management the union activities of other employees.”

However, Solomon did point to some provisions in the offending policies that were permissible, namely provisions that he said could not conceivably be construed as extending to terms and conditions of employment. For example, a provision barring online conduct amounting to “harassment, bullying, discrimination, or retaliation” was permissible, and a confidentiality policy was lawful where it provided specific examples of the information that the company sought to protect, such as “information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications.”

Solomon also attached to his memo a social media policy he deemed entirely lawful as an example for other companies to consider.

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