Be Careful! Employer Policies/Personnel Actions on Use of Social Media Can Constitute an Unfair Labor Practice

April 03, 2013

Who would think that disciplining an employee for a derogatory social media post about working conditions (or having a social media policy banning such posts) could cause trouble for the employer?  The National Labor Relations Board, that’s who – and they will even cause trouble even for employers with no unions!

Section 7 of the National Labor Relations Act, 29 U.S.C. §157, applies to all employers, regardless of any union activity, and protects employees who are engaged in job related concerted activities.  Under Section 7, concerted activities typically involve two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if the employee involves co-workers before acting, or acts on behalf of others.  Violation of Section 7 is an unfair labor practice, enforced by the National Labor Relations Board.

Recently, the office of the General Counsel for the NLRB has issued reports discussing the applicability of the NLRA protections for concerted activity in the context of employer policies dealing with employee use of social media and personnel action taken because of employee use of social media.  In general, employer policies will be deemed overly broad (and therefore in violation of Section 7) and employer action taken for violation of these policies will be deemed unlawful where the policy could be construed to restrict employees from discussing wages and conditions of employment with co-employees or third parties.  For example, the following types of provisions were deemed unlawful:

Additionally, the General Counsel noted that “disclaimer” language in policies such as a statement that the policy would be administered consistently with applicable laws and regulations, including Section 7 of the National Labor Relations Act, would not be effective to cure overly broad language.

In order to avoid violation of Section 7, an employer’s policy must be drawn sufficiently narrowly so that a reasonable reading would not restrict employee’s rights to participate in concerted activities.  Such a result can be obtained by including examples of the type of conduct covered by the policy.

The following are examples of provisions found by the General Counsel not to be unlawful:

The General Counsel’s guidance can be found on line at the NLRB website (, including an entire policy that the General Counsel found to be in compliance.

The take away for employers is to 1) draft Social Media policies narrowly, so that the policies could not be reasonably construed to prohibit protected activities such as discussions on wages and working conditions – use examples to clarify, and 2) avoid taking adverse personnel action against employees who raise issues that affect more than one employee or advocate on behalf of other employees concerning working conditions.