Wednesday, February 22, 2012

NRLB Weighs in on Employer Social Media Policies and Employee Disciplinary Action

The National Labor Relations Board (“NLRB”) recently provided a second report offering additional guidance to employers on disciplinary actions and social media policies. The report highlights 14 cases: half involving employee discharges based on employees’ Facebook posts; and the other half reviewing employer social media policies. As expressed by the NLRB, its guidance seeks to underscore two points:
  • Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; and
  • An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
The NLRB is particularly concerned about employers infringing upon employee National Labor Relations Act (“NLRA”) rights “to engage in … concerted activities for … mutual aid and protection,” including activities to address the terms and conditions of the employees’ employment. All employees covered by the NLRA, whether union members or not, have these rights. While the NLRB acknowledges that individual employee gripes made on social media which are not directed toward sparking group discussion or activity are generally not protected, the NLRB has continued to find that many disciplinary decisions based on social media activity infringe upon NLRA rights. Further, even if the disciplinary action at issue did not infringe upon such rights, the NLRB has continued to find that employer policies with broad or vague language could reasonably be construed by employees to restrict conduct protected by the NLRA. The January 24, 2012, publication is instructive to employers—both as a reminder regarding social media/Internet activity-related disciplinary actions, and as a source of specific examples of language the NLRB disfavors in social media policies.
  • Recognize employees’ rights under Section 7 of the NLRA. The NLRB indicates that social media policies should contain language to clarify that the policy does not restrict employees’ rights under the NLRA, including their Section 7 rights to engage in concerted activity concerning the terms and conditions of employment or other mutual aid or protection. However, while this language may show the employer’s good intent, the NLRB does not find such a clause to be sufficient to address otherwise vague or overbroad terms that employees may perceive to prohibit Section 7 protected activity.
  • Watch the adjectives. The NLRB’s memo stressed repeatedly that vague terms such as “appropriate/inappropriate,” “professional/unprofessional,” “disparaging” and “disrespectful,” when used in broad statements in social media policies, can be construed by employees as restricting their Section 7 rights and should be avoided.
  • Context and examples can help. The NLRB indicated that with the addition of context and specific examples the employer can narrow the behavior prohibited by social media policies. Thus, an otherwise vague term like “appropriate” may be lawful if used within a narrowed context because the employee would understand his/her Section 7 rights are not covered.
  • Requiring prior authorization or disclaimers that opinions expressed belong solely to the employee should be limited. Except in the case of endorsements, testimonials or other positive statements about an employer or its products, which are governed by Federal Trade Commission regulations, the NLRB found that requiring employees to get prior authorization, or to always identify their position with the company and state that the opinions belong to the employee alone, could be too burdensome.

  • Identity of employer should not be broadly prohibited. Again, except with endorsements and testimonials, the NLRB found that using the company’s name or logo may be a tool in an employee’s outreach efforts for protected concerted activity and should not be subject to a blanket prohibition or requirement of prior approval before use.
Given the NLRB’s issuance of this follow-up report, even employers who have updated their social media policies as recently as a year or two ago may want to take a look and revise their policies accordingly. Employers should stay tuned for future decisions from the NLRB.


Megan E. Alexander                    Hanna Fister Norvell                 Gregory T. Casamento