The combination of “social media” and the “workplace” raises many traps for the unwary employer:

Can we use social media when hiring? Can employees be prohibited from using social media at work? Can we monitor employees use of social media? What are the essential elements of a social media policy?

As with many issues involving new technology, however, a good part of the analysis typically reverts back to traditional principles of employment law. The same is likely to be true when the use of social media intersects with certain aspects of Labor Law.

Section 7 of the National Labor Relations Act states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

An employer violates NLRA Section 8(a)(1) by acts and statements reasonably tending to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Thus, employers need to remember to consider existing labor principles issues when adopting and enforcing social media policies, discussing social media usage with employees and monitoring usage, and disciplining employees because of their social media usage.

In a recent case (Salon/Spa at Boro, Inc. 9-CA-45349, 9-CA-454426, 9-CA-45538), employees claimed their manager unlawfully threatened them concerning their social media usage. The manager impressed upon the employees that their postings on social networking sites were perhaps more available for public viewing than they realized, and expressed displeasure that certain current employees were choosing to post comments on social network sites belonging to disgruntled former employees. In addition to agreeing with the employer’s statute of limitations arguments, the Administrative Law Judge found the purpose of the manager’s statements concerning publicity to be didactic, not coercive. In regard to the statements about postings on sites belonging to disgruntled employees, the ALJ found no threats, but rather a lawful expression by an employer of opinion, citing NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).

A nonbinding Advice Memorandum from the National Labor Relations Board in Sears Holdings (Roebucks) Case 18-CA-19081 addressed a social media policy and whether it violated Section 7 of the NLRA. The policy stated:

In order to maintain the Company’s reputation and legal standing, the following subjects may not be discussed by associates in any form of social media:

  • Company confidential or proprietary information
  • Confidential or proprietary information of clients, partners, vendors, and suppliers
  • Embargoed information such as launch dates, release dates, and pending reorganizations
  • Company intellectual property such as drawings, designs, software, ideas and innovation
  • Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects
  • Explicit sexual references
  • Reference to illegal drugs
  • Obscenity or profanity
  • Disparagement of any race, religion, gender, sexual orientation, disability or national origin

The Division of Advice held that while the provision concerning disparagement of the company’s executive leadership, employees, and strategy could “chill” Section 7 activity, the policy should be viewed in context, not by looking at any provision in isolation. The Division of Advice reasoned that the policy does not apply to Section 7 activity because while the statement “could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a reasonable employee from construing the rule as a limit on Section 7 conduct.” This is because virtually all of the other items on the list of proscribed activities in the policy are clearly not protected by Section 7.

These two decisions provide some good news for employers. The bad news is that both of these decisions were made before the significant changes in the make-up of the National Labor Relations Board following Barack Obama’s becoming President. Many believe the current composition of the NLRB is likely to substantially change these results, requiring employers to exercise more care in how they handle social media issues from a labor relations perspective. There also are related issues that may be revisited by the NLRB in the near future, such as Board’s decision in Guard Publishing Co., d/b/a The Register-Guard, 351 NLRB 1110 (2007) (pdf), that a policy prohibiting use of the employer’s e-mail system for any “non-job-related solicitations” does not violate the §8(a)(1).

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.