Social media on the Internet have become enormously popular in recent years as more and more people log on to chat, blog and post updates on an infinite variety of topics. In response to this phenomenon, many companies have created social media policies seeking to regulate what employees say about their jobs.
Social media policies serve a variety of purposes as companies endeavor to preserve trade secrets, comply with industry regulations, prevent discrimination and harassment, and protect the company’s brand in connection with its products and services.
As social media policies become more prevalent, they also have come under fire in unfair labor practice charges to the National Labor Relations Board (NLRB). These charges are being brought by non-union and union workers alike, some resulting in determinations that the policies violated employee rights under the National Labor Relations Act (NLRA) to engage in concerted activity.
NLRB guidance also indicates that this potential risk can be minimized by carefully drafting social media policies to strike the right balance between safeguarding the company’s legitimate objectives without infringing on employees’ protected rights.
NLRA Right to Engage in Concerted Activity
Section 7 of the NLRA provides that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 rights encompass union activities such as collective bargaining, as well as other activities for mutual aid or protection that also are applicable in a non-union context. Understanding the parameters of protected concerted activity is a key issue for crafting a legally compliant social media policy.
The NLRB broadly interprets concerted activity under Section 7 as covering situations where two or more employees act together to improve wages or working conditions, as well as when only one employee acts and other co-workers are involved or the employee is acting on their behalf. By contrast, protected concerted activity does not include purely personal gripes without any contemplation of group action, and Section 7 protection can be lost if an employee engages in malicious behavior or sabotage, defames the company’s product or discloses trade secrets.
In determining whether a policy unlawfully restricts employees from engaging in concerted activity, the NLRB applies a legal test that analyzes whether the policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.” A policy is unlawful if it explicitly restricts activities protected by Section 7 or if it implicitly restricts such activities because:
(1) employees would reasonably construe the policy’s language to prohibit Section 7 activity;
(2) the policy was promulgated in response to union activity; or
(3) the policy has been applied to restrict the exercise of Section 7 rights.
This legal test looks not only to what a policy says, but also to how an employee might interpret it. This can have a sweeping effect because ambiguities in policy language tend to be construed against the company and violations may be found even in policies that are facially neutral. Accordingly, social media policies should be drafted very precisely and with awareness of the extent and boundaries of employees’ Section 7 rights.
Recent NLRB Rulings Invalidating Social Media Policies
The NLRB issued several decisions in 2013 finding that specific social media policies violated employees’ Section 7 rights. One such policy stated that employees could not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that has not already been disclosed as a public record.
The NLRB found the policy to be unlawful because it could be read to prohibit employees from discussing wages and other personnel matters, and because employees should not have to decide at their own peril what information is not lawfully subject to such a prohibition. The NLRB further ruled that the company’s attempt to clarify its policy was not an effective repudiation of unlawful conduct because it was not timely made and did not admit any wrongdoing.
In another case, the social media policy stated that employees could not make disparaging remarks about the company and could not participate in social media activities on company time. The NLRB found this policy to be unlawful on two grounds. First, the policy could be read as unlawfully prohibiting negative commentary about wages or working conditions. Second, the policy also could be read as unlawfully prohibiting union activities during breaks and other nonworking hours at the enterprise.
In a third case, the social media policy stated that employees could not disclose wages or compensation to a third party or to any other employee. The NLRB found this policy to be unlawful because Section 7 protects the right of employees to discuss wages and other benefits with each other and with nonemployees.
The NLRB further ruled that the company unlawfully terminated employees for engaging in other protected concerted activity – posting messages on Facebook that concerns shared with other employees regarding their working conditions had been raised with a supervisor and their belief that nothing was being done in response, and about bringing a worker’s rights book to work for the employees to peruse.
NLRB Guidance on Properly Circumscribed Social Media Policies
By contrast, the NLRB recently issued an advice memorandum in another case stating that the company did not violate an employee’s Section 7 rights when it terminated her for comments she posted on Facebook regarding her employment. The employee had vented on Facebook that her supervisor tried to tell her something, the company was “full of s***,” and “FIRE ME … make my day.”
When a co-worker showed the posts to the company, the employee was terminated on grounds that it was obvious she was no longer interested in working there. The NLRB upheld the termination, finding the employee had merely expressed an individual gripe rather than any shared concerns about working conditions.
The NLRB also issued an advice memorandum in 2012 stating that a social media policy was lawful insofar as it prohibited employees from defaming or otherwise discrediting the company’s products or services. The NLRB stated that this provision did not prohibit conduct protected under Section 7 because it did not concern the company’s labor policies or treatment of employees.
In another advice memorandum issued in 2012, the NLRB upheld a social media policy in its entirety as properly circumscribed and attached a copy of the compliant policy. The NLRB found that the policy could not reasonably be construed to prohibit Section 7 protected activity because it was clearly drafted, restricted in scope and included sufficient examples of prohibited conduct that was not protected under Section 7.
The NLRB has issued several rulings finding that specific social media policies violated employees’ Section 7 rights. In many of those cases, the policies included multiple lawful restrictions, but were either overbroad in scope or contained some ambiguous verbiage.
A policy that is carefully drafted, precisely worded and narrowly tailored will likely withstand NLRB scrutiny while still furthering the company’s legitimate objectives.
 NLRA Section 7, 29 U.S.C. 157.
 See http://www.nlrb.gov/rights-we-protect/protected-concerted-activity.
 Lafayette Park Hotel, 326 NLRB 824 (1998), enf’d, 203 F.3d 52 (D.C. Cir. 1999).
 Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
 DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB 54 (2013).
 Dish Network Corp., 359 NLRB 108 (2013).
 Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB 96 (2013).
 Tasker Healthcare Group, d/b/a Skinsmart, Case No. 04-CA-094222 (May 8, 2013).
 Giant Foods LLC, Case No. 05-CA-064793 and related cases (March 21, 2012).
 Walmart, Case No. 11-CA-067171 (May 30, 2012).