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:
- An instruction that an employee is not to “release confidential guest, team member or company information” since this could be reasonably interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves.
- A prohibition instructing employees not to share confidential information with co-workers unless the co-workers need the information to do their jobs, and not to have discussions regarding confidential information in the break room, at home, or in open areas and in public places since such a restriction could be construed as prohibiting discussing information regarding the terms and conditions of employment.
- Provisions threatening discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information, without defining and restricting the “confidential information” covered by the provision since the prohibition could apply to discussions of wages and working conditions.
- A provision cautioning employees not to post information unless “completely accurate and not misleading” since such provision could be interpreted to apply to discussions about, or criticisms of, employer’s labor policy and its treatment of employees.
- A instruction not to “reveal non-public company information on any public site”, defining non-public information as “any topic related to the financial performance of the company, information that has not already been disclosed by authorized persons in a public forum, and personal information about another employee, such as performance, compensation, or status with the company” for the reason that as worded, employees could construe the policy as precluding them from discussing terms and conditions of employment among themselves or with non-employees.
- A provision cautioning employees that when in doubt as to whether a given post falls into one of the prohibited categories, the employee was not to post, but rather was to check with the employer to see if it is a good idea, for the reason that a rule that requires employees to secure permission from the employer as a precondition to engaging in concerted activities violates the NLRA.
- A provision prohibiting employees from posting photos, videos, and quotes and personal information of others without obtaining their permission and prohibiting employees from using employer’s logos and trademarks, for the reason that such provision could be construed as prohibiting use of photos and videos of employee demonstrations and picket signs containing the employer’s logo.
- An instruction that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” for the reason that this language is broad enough to preclude protected criticism of the employer’s labor policies or treatment of employees.
- A provision instructing employees to “think carefully about ‘friending’ co-workers” because it would discourage communications among co-workers.
- A rule prohibiting disclosure of personal information about the employer’s employees and contingent workers because, in absence of clarification, employees would reasonably construe the rule to include information about employee wages and their working conditions.
- A warning not to “pick fights” and to avoid topics that might be considered objectionable or inflammatory, such as politics or religion and reminding employees to communicate in a “professional tone” since such restriction could be construed to prohibit robust but protected discussions about working conditions.
- A provision encouraging employees to resolve concerns by speaking directly with co-workers, supervisors and other management-level personnel, rather than by posting complaints on the Internet, for the reason that the probable effect would be to preclude or inhibit employees from the protected activity of seeking redress through alternative forums.
- A provision prohibiting employees from expressing their personal opinions to the public regarding “the workplace, work satisfaction or dissatisfaction, wages, hours or work conditions” because it precludes employees from discussing and sharing terms and conditions of employment with non-employees.
- A prohibition on making “disparaging or defamatory” comments, because employees could reasonably construe that prohibition to apply to protected criticism of the employer’s labor policies or treatment of employees.
- A provision precluding employees from contact with the media without prior employer involvement, because employees have a protected right to seek help from third parties regarding their working conditions, including going to the press, blogging, or speaking at a rally or talking to government agencies.
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:
- A provision prohibiting employees from discussing safety performance of the employer’s product (as contrasted with safety of the workplace).
- A provision prohibiting health care employees from disclosing personal information except to authorized recipients.
- A provision cautioning employees to respect copyright and other intellectual property laws.
- A prohibition on online harassment and bullying (“harassment, bullying, discrimination or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers”).
- A provision prohibiting postings on the Internet in the name of the employer or in a manner that could reasonably be attributed to the employer without prior written authorization from the president or the president’s designated agent.
- A provision prohibiting representation of any opinion or statement as the policy or view of the employer or of any individual in their capacity as an employee or otherwise on behalf of employer.
- A provision requiring that employees expressly state that their postings are “my own and do not represent employer’s positions, strategies or opinions.”
- A provision requiring employees to maintain the confidentiality of the employer’s trade secrets and private and confidential information, where the employer provided examples of prohibited disclosures “information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, and other internal business-related communications” so that the employees would understand that the prohibition does not reach protected communications about working conditions.
The General Counsel’s guidance can be found on line at the NLRB website (http://nlrb.gov), 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.