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.

Problem Provisions

  • 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.

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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.