Can Your Employer Control What You Say Online?
As social media provides more and more ways to connect with others and spread information, employers have begun to use social media polices as a way to regulate their employees’ activities on sites such as Facebook and Twitter.
That would be fine if companies’ efforts were narrowly aimed at restricting their employees from discussing trade secrets or confidential financial information online, for example.
But some employers are going too far, according to the National Labor Relations Board (NLRB), which is warning employers against implementing social media policies that are too broad.
The NLRB Gets Involved
On May 30, the NLRB issued a report analyzing social media policies from employers in a wide range of industries across the country. In six of the seven cases reviewed, the General Counsel’s office found that at least some of the provisions in the policies violated employees’ rights because they were unlawfully overbroad.
“The NLRB has been, by far, the most active agency in considering and releasing guidance on social media issues in the workplace,” says Renee Jackson, an associate in the San Francisco office of Nixon Peabody who practices employer-side labor and employment law. “This is the third memo that the NLRB’s Acting General Counsel has released in less than a year specifically addressing social media.”
The overall message of the memos, issued by Acting General Counsel Lafe Solomon, is that employers cannot impose broad social media policies that their employees could interpret as restricting their rights to openly discuss their working conditions, form unions, and even make certain criticisms of their employers.
Those rights are protected by Section 7 of the National Labor Relations Act (NLRA), explains Jackson. “These rights extend to unionized and non-unionized workplaces, and protect employees’ ability to discuss their terms and conditions of employment – including wages – with each other,” says Jackson.
Overly Broad Policies
For example, in the May 30 memo, the NLRB nixed part of an employer’s social media policy that warned employees to “use technology appropriately” and sweepingly forbade them from “releas[ing] confidential guest, team member or company information” on online social networking sites.
In an example from another company’s policy, employees were told their social media posts concerning the company must be “completely accurate and not misleading and that they do not reveal non-public information on any public site.” The NLRB found the term “completely accurate and not misleading” overbroad “because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”
Another company’s policy said, “Don’t comment on any legal matters, including pending litigation or disputes.” The NLRB found this prohibition unlawful “because it specifically restricts employees from discussing the protected subject of potential claims against the Employer.”
The basic problem, says the NLRB, is that the companies did not limit or define these terms in any way. And because employees might interpret the policies as forbidding them from discussing information about their (and their co-workers’) conditions of employment, the policies run afoul of the NLRA, which specifically protects such discussions.
It’s Not a Free-For-All
But this doesn’t mean employees can use social media channels to say whatever they want about their companies. “An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees,” warns the NLRB in an earlier press release on the issue.
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In addition, the NLRB found several aspects of social media policies perfectly legal, such as provisions requiring employees to “respect all copyright and other intellectual property laws,” and forbidding “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace” as “not permissible between co-workers online, even if it is done after hours, from home and on home computers.”
The key is whether an employee could reasonably read a provision in a social media policy as a prohibition on doing something that labor laws specifically allow or protect.
“It is important to note that the NLRB is considering these issues on a case-by-case basis,” Jackson points out. That means there are no hard and fast rules for employers or employees to go by. Social media policies may or may not be unlawful, and posts may or may not be protected, depending on the circumstances.
“Employers should define key terms, give examples as to exactly what is prohibited, and make it clear that nothing in the social media policy is intended to restrict employees from communicating about wages, hours, or other terms and conditions of their or their co-workers’ employment,” says Jackson.
Lawful SM Policies Good for Employees and Employers
If you, as an employee, are concerned that your company’s social media policy might be too restrictive, first look closely at the policy. If you think it might cover protected discussions, bring it to your employer’s attention. Some employers—especially those with non-unionized workforces—may not realize that the NLRA applies to social media or may not be tracking the developments at the NLRB in real time. Your employer may be willing to revise the policy to comply with current guidance. You can also contact your regional office of the NLRB to express any concerns.
The bottom line is that ambiguous and over-broad social media policies are raising red flags at the agency. Employee chatter on Facebook or Twitter could be protected, and both employees and employers should know their rights and responsibilities.
How much control should employers have over their employees’ online activities? Share your opinion by leaving a comment below.