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Social Media Concerns Continue to Grow for Employers

By: Nick Nykulak | 4/10/2012 | Category: Labor Law-Social Media
On January 24, the Office of the General Counsel for the National Labor Relations Board ("Board") issued a Memorandum detailing recent developments of social media cases handled by the General Counsel. In the Memorandum, the General Counsel discusses fourteen cases dealing with a variety of social media issues, including "overly broad" social media policies thought to restrict employees from exercising their Section 7 rights under the National Labor Relations Act ("Act"), and disciplinary actions taken against employees who used social media to criticize their employer, fellow employees, or supervisors.

Section 7 of the Act protects, amongst other things, the rights of two or more employees to discuss wages, hours or other terms and conditions of employment with other employees; to organize, form, join, or assist a labor organization; to bargain collectively through a representative of their choosing for the purposes of mutual aid or protection; or to refrain from engaging in such activities. These Section 7 rights are generally referred to as "protected concerted activities." Recently, the General Counsel has recognized that social media communications, such as those found on Facebook, YouTube, Twitter or similar websites, can constitute concerted protected activities entitled to protection under the Act, regardless of whether those communications are in the form of text, audio, video, or images. Where protected communications in the past occurred between employees at various physical locations inside and outside of the workplace, the advent of social media has created an outlet that allows these communications to be broadcast to millions of people on the internet, not only reaching the company’s other employees, but also the company’s customers, suppliers and the public in general.

In response to the broad reach that social media can have, many employers have written social media policies to prevent employees from "disparaging" or otherwise "criticizing" the company on the internet. However, the General Counsel has determined that many of these social media policies are overly broad, undefined, vague or subjective as written. Furthermore, even if an employee is not disciplined under the policy, it may still constitute an unfair labor practice under Section 8(a)(1) of the Act. The General Counsel reasoned that "overly broad" social media policies that generally state that employees may not "disparage" the company may also prevent employees from criticizing or complaining about wages, hours or other terms and conditions of employment with other employees.

However, the General Counsel did state that more specific and narrowly tailored social media policies unrelated to the exercise of Section 7 rights would be acceptable. For instance, a social media policy that prevented employees from making vulgar, obscene, threatening or otherwise harassing comments about fellow coworkers, supervisors and the company would be acceptable under most circumstances. Likewise, any policy that prevented social media communications that would constitute discrimination or hostility on the basis of age, race, religion, sex, ethnicity, nationality, or disability would also be acceptable. Additionally, even with an "overly broad" and unlawful social media policy, employees may still be disciplined for social media communications unrelated to the exercise of their Section 7 rights, if the employer can prove that the communication actually interfered with the employee’s work, the work of another employee, or with the employer’s operations, and that the communication was the reason for the discipline.

The General Counsel also found "confidentiality" policies unlawful, in that it could potentially prevent employees from discussing their wages and working conditions with anyone outside of the company. Generally, policies that prevent employees from disclosing "sensitive or non-public information" to any third party were determined to be overly broad and violative of the Act. Similarly, the General Counsel struck down policies that limit an employee’s right to identify the company in a social media communication and policies that prevent employees from identifying themselves as employees of the company, prevent use of the company’s logo or trademark in a social media communication, or otherwise require employees to post a disclaimer that the opinion they express is not the opinion of the company, when those employees are engaging in concerted protected activities. Employers may still have policies that prohibit employees from representing to the public that they are speaking on behalf of the employer.

A lawful social media policy must be drafted in a way so as not to infringe upon the rights of employees to engage in protected concerted activities. The policy should be specific and narrowly tailored to achieve a specific purpose unrelated to an employee’s exercise of his Section 7 rights. A general purpose disclaimer stating that the social media policy is not meant to infringe upon the protected concerted activities of employees will not be enough to make a social media policy lawful under the current General Counsel or Board. Many factors must be weighed and considered before disciplining any employee for a social media communication, and legal counsel should be consulted. Most social media communications could contain a mix of protected speech and speech that is not protected, and each situation will differ.

If you have any questions or concerns regarding an existing social media policy, or wish to have a social media policy drafted or reviewed, please feel free to contact Nick Nykulak, Lynn Schonberg or Ryan Neumeyer.

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