NLRB Governs Social Media

As appearing in the Human Resource of Central Ohio (HRACO) monthly newsletter

 

NLRB Governs Social Media of Both Union and Non-Union Companies

In last month’s HRACO newsletter, I gave a brief overview of the many changes occurring at the National Labor Relations Board and the new rules that the Board implemented covering both union and non-union companies. If you have not read it, go back and read it now. The changes are coming fast and furious and affect almost every private employer. One change I did not cover was the Board’s governance of social media use by employees. Social media is so important that it gets its own article in this month’s newsletter.

Why Does The NLRB Care About Social Media

The National Labor Relations Act applies to both non-union employees and those represented by labor unions. This 1935 law was originally designed to protect employees’ rights to organize unions, engage in labor strikes, and bargain collectively in manufacturing settings.

One hallmark of the Act is that employers cannot stifle an employee’s ability to discuss wages, hours, and other terms and conditions of employment. Thus, employers cannot implement policies – including modern day social media policies – that could reasonably be understood by employees to prohibit them from discussing their terms and conditions of employment.

Because of the newness of social media, employers do not have much guidance from courts as to what an appropriate social media policy should include. The NLRB is filling this void and quickly shaping the future of social media in the workplace. Employers who created or updated their social media policies even as recently as a year ago should review them again to ensure they still comply with the evolving NLRB guidance.

Since you probably haven’t reviewed your social media policy since it was drafted, here’s a little encouragement to review it for compliance. Over the past year, employers – both unionized and non-union – have lost the overwhelming majority of social media cases decided by the NLRB. These losses have culminated in monetary fines, reinstatement of terminated employees, payment of lost wages, and public criticism of corporate policies.

The penalty is even greater for non-union companies. For example, if employees of a non-union employer attempt to organize a union but lose a representation election, the Board can use the employer’s “illegal” social media policy to overturn the election result and order a new election even if the social media policy was not at issue in the election.

Do I have your attention?

What The NLRB Says Employers Can And Cannot Include In Social Media Policies

While the nuances of each company’s social media policy will vary because the policies are tailor-made for individual companies, here is a guideline of what the National Labor Relations Board believes is permissible and impermissible when it comes to social media policies.

SOCIAL MEDIA POLICIES SHOULD NOT	SOCIAL MEDIA POLICIES CAN
Broadly prohibit employees from posting comments that embarrass, harass, disparage, or defame the company, or that demonstrate inappropriate, insubordinate, disrespectful, unprofessional, offensive, rude, or discourteous behavior	Prohibit posts that violate the employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.
Prohibit employees from posting pictures of themselves with identifying information about the employer, i.e. uniform or logo	Require adherence to securities regulations, health privacy rules, confidentiality of trade secrets, and similar laws
Prohibit posting comments about the employer and their terms and conditions of employment.	Prohibit vulgar, obscene, threatening, intimidating, or harassing comments
Include broad adjectives like appropriate or inappropriate, professional or unprofessional, disparaging, or disrespectful.	Prohibit from disclosing confidential and/or proprietary information like launch dates, pending reorganizations, and personal health information
Require employees to, in every post, expressly state that their comments are their personal opinions, and not those of their employer	Prohibit posting comments on behalf of employer if policy states the purpose is to allow employer to have a consistent, controlled company message.
Broadly prohibit employees from depicting the employer, its name, property, logo, trademark, service mark, copyrighted name, or from identifying themselves as the employer’s employees.	Require employees to post disclaimers that the views expressed in their posts are their own when a post involves the endorsement or promotion of the employer’s products or services.

Confused yet?

How Effective Are Savings Clauses In Social Media Policies

In three words: not very effective. However, the editors want me to explain my answers – kind of like showing my work on a math problem in grade school.

Simply including words like, “Nothing in this policy is designed or intended to restrict an employee’s right to engage in protected activity under the NLRA” or “Nothing in this policy is intended to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities” do not magically transform a social media policy that violates the National Labor Relations Act into one that does not violate the Act.

What Are The Bullet Point Takeaways

Employers should treat social media posts as they would a verbal comment.

Be precise and give examples when drafting social media policies.

All supervisors and human resource personnel must be trained on how to deal with social media.

Consult with counsel, if necessary, before drafting social media policies or disciplining for social media activity.

 

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342