In a 23-page report, the Acting General Counsel for the National Labor Relations Board summarizes the Board’s positions on social media and labor relations. This report is an interesting read and provides insight into one aspect of drafting social media policies – whether the policy will violate an employee’s right to take part in protected concerted activity.
The report notes that:
Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media. All of these cases were decided upon a request for advice from a Regional Director.
Social media clearly is an important issue for the Board and this memorandum likely is not its last word on the rules that will shape employer policy concerning the use of this media. The following discussion summarizes the memorandum and its effects on social media policy.
See related articles concerning NLRB activity concerning social media.
What is protected concerted activity?
In general, the Board’s test for concerted activity is whether activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention. Thus, in one of the cases discussed in the NLRB memo, an employee’s posts about his "individual gripe" concerning a manager, where other employees only expressed "emotional support" for the employee, was not concerted activity.
When is concerted activity protected?
An employee’s concerted activity will be protected where, for example, the employee’s statements implicate the employee’s working conditions, regardless of how those statements are communicated. Another example of protected activity under Section 7 of the NLRA occurs when the employee protests supervisory actions. However, these protections can be lost where the employee’s outbursts about a supervisor are too "opprobrious" to maintain protection under Section 7. Uses of curse words or expletives are unlikely to reach this level. The protection also could be lost where the communication is reckless or maliciously untrue.
What social media policy provisions should be avoided?
The contours of what constitutes protected concerted activity require further examination and analysis of the facts at issue, along with prudent advice from expert labor counsel. The NLRB memo, however, provides helpful guidance concerning some popular policy provisions that if not adequately defined or limited could run afoul of Section 7 rights.
- prohibiting employees from posting, without authorization, pictures of themselves in any media which depict the company, including its logos, trademarks, uniforms, and so on, as well as revealing personal information including through photographs of coworkers, clients and others.
- prohibiting employees from making disparaging remarks when discussing the company, management, co workers, or competitors.
- prohibiting the use of inappropriate, generally offensive language, as well as rude or discourteous behavior to a client or coworker.
- communications that reveal confidential or proprietary information or any person or entity or that amount to "inappropriate discussions" about the company or management may result in discipline.
- prohibiting posts that would embarrass, harass or defame the employer or its employees, or harm their reputation or goodwill.
- prohibiting posts that would put the employee’s job in jeopardy.
The memo discusses the application of Section 7 protections to each of these policies. It recites the basic test to determine whether the policy will violate Section 7, which is two-fold.
First, a rule is unlawful if it explicitly restricts Section 7 activities. [Second, i]f the rule does not explicitly restrict protected activities, it is unlawful only upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
However, based on the discussion in the memo, just about all of the "problem provisions" could remain in some form if the prohibitions were adequately defined and/or the policy made clear that the prohibition did not extend to Section 7 activity. This could be accomplished through careful drafting and the addition of examples.
For example, prohibiting communications that reveal confidential or proprietary information generally could be read to apply to employer wage or compensation schemes which involve working conditions. Likewise, a policy that prohibits employees from posting photographs on Facebook with company logos standing along can be read to prohibit photographs of employees holding picket signs, a protected activity. In each case, the policy should be drafted to address the concern of the employer while carving out from the prohibited activity that which is protected under Section 7.