The Impact of the NLRB Rules on Social Media Policies
Social media continues to be a growing source of concern for employers. Many companies are realizing that it is necessary to create policies, but the guidance for creating and implementing these policies has not always been clear. Social media is an important tool for businesses, but employers need to concern themselves with how to protect themselves and their employees without violating the National Labor Relations Act (NLRA).
The National Labor Relations Board (NLRB) was created to administer and enforce the NLRA. The NLRB is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve wages and working conditions. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the NLRB will fight to restore what was unlawfully taken away. Recently, it has made attempts to regulate social media when groups of employees join together to discuss pay, work conditions, safety conditions or other employees.
The NLRB has argued that when an employee makes a comment or a posting on social media about his or her employer or another employee, this can be a protected activity. Specifically, the NLRB has found that when the comment, post, blog, etc. relates to an issue including wages or working conditions and affects two or more employees, it is a covered activity.
The NLRB General Counsel memorandum dated May 30, 2012 provided additional guidance on social media cases. It noted that a social media policy should:
• Provide guidelines and advice that inappropriate posting that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct will be subject to disciplinary action
• Be honest and accurate and, if a mistake is made, correct it quickly
• Be respectful and do not permit conduct including offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy
• Refrain from using social media at work unless it is work related and authorized; do not use the employer’s email addresses to register for social media websites for personal use
• Retaliation against an employee for reporting a deviation from the policy is prohibited and will be subject to disciplinary action
In recent decisions, the NLRB has clarified what types of actions are not permissible. The NLRB’s holding in Costco Wholesale Corporation (NLRB case No. 34-CA-012421, decided on September 7, 2012 in Milford, CT), makes clear that social media policies cannot give the impression that they prevent protected speech. The NLRB found that the company policy regarding social media was too broad and did not exclude protected communications among workers. The policy prohibited statements that “damage the Company, defame any individual or damage any person’s reputation” and made no distinction for protected communications. However, the board did find that a policy in the handbook that directed employees to use “appropriate business decorum” in communications (including conversations) and prohibiting employees from posting messages that “damage any person’s reputation” was not a violation. The board agreed that this was not a violation as the employee would understand it was established to maintain a civil workplace. This distinction allows employers to act against an individual or group of employees who use social media to rant against either an unprotected speech such as bullying a co-worker for the way they look or act.
In Karl Knauz BMW, Knauz Auto Group (NLRB case No. 13–CA–046452, decision September 28, 2012 in Lake Bluff, IL), an employee was fired after posting photos and comments to his Facebook about an embarrassing accident at an adjacent dealership, as well as posting mocking comments and photos about a work event. Other employees were noted to have commented on the posts. The company had a “courtesy” rule in the handbook that noted employees should be courteous, polite and friendly to customers, vendors and suppliers as well as fellow employees. Profanity or being disrespectful were violations as well as language which injured the image or reputation of the dealership. The NLRB found in its decision that the rule was unlawful because, as in Costco, there was no exception for protected rights. However, it noted he was fired because of the posting about the adjacent dealership, which was not a protected or concerted activity.
Work place harassment through social media has also become more of an issue than it was in the past. An example would be when an employee is engaged in the use of social media to harass, intimidate or employ unlawful conduct towards a coworker. Creating a policy and the discipline that will occur should said conduct occur is necessary. Furthermore, employers should have an “Employers Right to Access” policy that allows the employer the ability to review content on its own systems so that, if the alleged harassment occurs on a company device, an employer can view and access the alleged content.
In the case of Hispanics United of Buffalo, Inc. (NLRB case No. 03–CA–027872, decision December 14, 2012 in Buffalo, NY), the NLRB dealt with whether the employer violated the NLRA by terminating employees for Facebook comments they wrote in response to a co-worker’s criticism of their job performance. It was held that the activity was a concerted activity as one employee posted a message about job performance and solicited comments of protest from co-employees. When the other employees responded, they made a common cause. Given that the communication was about job performance, it was found to be protected under the NLRA.
Social media is continuing to grow and employers need to remember that in order to protect themselves, a Social Media Policy is necessary. However, the policy cannot prohibit protected activity and must be narrowly tailored with examples of prohibited conduct. It is important for employers to consult with counsel to develop or review their Social Media Policy and make sure it is lawful under the NLRA.
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Jennifer G. Laver is a partner at Weber Gallagher. She defends insurance companies, self-insured employers and third party administrators in New Jersey workers’ compensation and employment matters. Jennifer is based in the firm’s Mount Laurel office and can be reached at email@example.com.