August 09, 2013

Recently, the NLRB has focused on social media policies to determine if such policies chill Section 7 rights. In light of the fact that 47% of adults use social media sites, including blogs, it is no surprise that many employers have promulgated policies and work place use to govern employee use of social media. The NLRB, however, recognizes that many individuals use social media to air grievances, gather information, and to connect with others, and has thus made considerable effort to ensure that employer-promulgated social media policies do not chill the Section 7 rights of on-line employees.

The NLRB has committed vast resources to addressing social media policies. In fact, the NLRB is in the process of reviewing more than 100 social media policies to determine if such policies violate the NLRA. As with other policies, the use of vague, imprecise, or overly broad terminology can render a social media policy unlawful under the NLRA. For example, the following policy was ruled unlawful, because the term “disparaging” was overbroad and could be construed as limiting Section 7 rights:

The Company regards Social Media-blogs, forums, wikis, social and professional networks, virtual worlds, and user generated video or audio as a form of communication and relationship among individuals . . . You may not make disparaging or defamatory comments about [the Company], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services. Remember to use good judgment.

Similarly, the following policy was held to be unlawful, because of the policy did not clearly identify what type of conduct was prohibited:

Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Employee Agreement. Employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Employee Agreement, may be subject to discipline, up to and including termination of employment.

The NLRB ruled that this policy was unlawful, because the prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” was overly broad insofar as it could interfere with employees’ rights to discuss their working conditions, such as the employer’s treatment of its workers. As such, the rule could reasonably be seen as chilling employees’ exercise of their section 7 rights.

In contrast, the Board has found the following language to be lawful: [The Company] recognizes the benefits associated with electronic communications for business use. All employees are responsible for communicating with appropriate business decorum whether by means of e-mail, the Internet, hard-copy, in conversation, or using other technology or electronic means. Misuse or excessive personal use of [the employer’s] technology or electronic communications is a violation of Company policy for which you may be disciplined, up to and including termination of employment.

Despite ambiguous language such as “appropriate business decorum,” the NLRB affirmed an administrative law judge’s determination that where a rule in question on its face is clearly intended to promote “a civil and decent workplace,” (even though in some circumstances protected activity might be restricted) reasonable employees “would” not infer that the rules restrict Section 7 activities.

The take-away from these examples is that the NLRB is enforcing social media policies in the same manner as other NRLA policies. Employers who maintain unlawful social media policies run a significant risk of violating the NLRA. Moreover, in an era where employee comments on social media can “go viral,” it is important to ensure that existing social media policies are lawful before taking adverse actions against employees for on-line conduct.

Author:
Kevin M. Sibbernsen, Esq.
Jackson Lewis LLP

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