A recent report summarizing rulings by the National Labor Relations Board should cause all employers to reexamine their social media policy. Employers should remember that union and non-union employees alike are covered by the National Labor Relations Act, and therefore the Board’s recent rulings on social media policies are applicable to virtually all employers.
Section 8(a)(1) of the NLRA prohibits workplace policies that would reasonably tend to chill employees in the exercise of their Section 7 rights to engage in protected concerted activities, such as collective bargaining. The cases summarized by the report found the following policies violated the NLRA:
- Prohibiting employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors.
- Prohibiting the use of social media to engage in inappropriate discussions about the company, management, and/or coworkers.
- Prohibiting the use of social media to post pictures depicting the company in any way, such as pictures containing the company uniform or logo.
- Prohibiting employees from using social media to post anything that they would not want their manager or supervisor to see or that would put their job in jeopardy, talk about company business, disclose inappropriate or sensitive information about the employer, or post pictures or comments involving the company or its employees that could be construed as inappropriate.
- Prohibiting the use of social media in a manner that would: (1) violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity, (2) constitute embarrassment, harassment or defamation of the [employer] or any … employee, officer, board member, representative, or staff member, or (3) lack truthfulness or that might damage the reputation or goodwill of the [employer], its staff, or employees.
- Prohibiting employees from using the company’s name, address or other information in their personal online profiles, or from revealing information regarding company clients, customers, partners, or coworkers without their consent.
Because the typical social media policy contains broad statements such as those above, to help minimize the risk of violating the NLRA, all social media policies should contain a disclaimer that in no event will the policies prohibit activities protected by Section 7 of the NLRA. Also, before disciplining or discharging an employee for violating your social media policy, you first should consult with an employment attorney.