The National Labor Relations Board (“NLRB”) continues to be active in its review of employer social media policies. In recent years, the NLRB’s review of social media policies has focused largely on whether an employee would reasonably construe the language of the policy as prohibiting him or her from engaging in activity protected by Section 7 of the National Labor Relations Act (“NLRA”), such as discussing terms and conditions of employment with fellow employees and engaging in strikes and other job actions.

In this case, Boch Imports, Inc. d/b/a Boch Honda, the NLRB Administrative Law Judge (“ALJ”) reviewed several provisions of an employer’s employee handbook. The employee handbook contained an extensive social media policy that included the following provisions:

1. The Company requires its employees to confine any and all social media commentaries to topics that do not disclose any personal or financial information of employees, customers or other persons, and do not disclose any confidential or proprietary information of the Company.

2. If an employee posts comments about the Company or related to the Company’s business or a policy issue, the employee must identify him/herself…

5. If an employee’s online blog, posting or other social media activities are inconsistent with, or would negatively impact the Company’s reputation or brand, the employee should not refer to the Company, or identify his/her connection to the Company… 

7. While the Company respects employees’ privacy, conduct that has, or has the potential to have a negative effect on the Company might be subject to disciplinary action up to, and including, termination, even if the conduct occurs off the property or off the clock.

8. Employees may not post videos or photos which are recorded in the workplace, without the Company’s permission.

9. If an employee is ever asked to make a comment to the media, the employee should contact the Vice President of Operations before making a statement.

10. The Company may request that an employee temporarily confine its social media activities to topics unrelated to the Company or a particular issue if it believes this is necessary or advisable to ensure compliance with applicable laws or regulations or the policies in the Employee Handbook. The Company may also request that employees provide it access to any commentary they posted on social media sites.

11. Employees choosing to write or post should write and post respectfully regarding current, former or potential customers, business partners, employees, competitors, managers and the Company. Employees will be held responsible for and can be disciplined for what they post and write on any social media. However, nothing in this Policy is intended to interfere with employees’ rights under the National Labor Relations Act.

12. Managers and supervisors should think carefully before “friending,” “linking” or the like on any social media with any employees who report to them.

The ALJ found “It requires little discussion to find that a number of these provisions clearly violate the [NLRA] as employees would reasonably construe these provisions as preventing them from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions, or limiting the subjects that they could discuss.” [emphasis added.]

Many employers maintain social media policies similar to the one at issue in this case. This decision highlights that employers, regardless of whether their employees are represented by a union, must be mindful of the NLRA when crafting social media policies.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joe has had the honor of being a part of the AmLaw 100, nationwide law firm, Jackson Lewis, which has 60+ offices around the country, for nearly 25 years. After practicing in the northeast for most of his career, Joe is resident in…

Joe has had the honor of being a part of the AmLaw 100, nationwide law firm, Jackson Lewis, which has 60+ offices around the country, for nearly 25 years. After practicing in the northeast for most of his career, Joe is resident in the firm’s growing Tampa office.

In 2005, as an associate, Joe founded and currently co-leads the firm’s national privacy, cybersecurity, and AI practice groups, which touts 25+ attorneys navigating complex and emerging challenges, particularly around the collection, use, disclosure, and retention of personal information, the deployment of artificial intelligence, and overall governance, risk and compliance in these areas, including FTCA, HIPAA, NIST, CCPA, CPRA, BIPA, GIPA, NY SHIELD, CIPA, etc. Joe has handled hundreds of data breaches, stood up cybersecurity compliance programs, and established AI governance programs.

Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a principal in the Boston, Massachusetts, office of Jackson Lewis. He is a member of the Healthcare industry group and a member of the Higher Education group.

With a background as a former Deputy General Counsel, Michael understands first-hand…

Michael R. Bertoncini is a principal in the Boston, Massachusetts, office of Jackson Lewis. He is a member of the Healthcare industry group and a member of the Higher Education group.

With a background as a former Deputy General Counsel, Michael understands first-hand the competing demands and unique challenges faced by in-house counsel. Before joining Jackson Lewis, he was responsible for all labor and employment law matters for the largest fully integrated community care hospital system in New England. Michael provides timely, practical advice that helps clients achieve their strategic goals while ensuring compliance with legal obligations.

With deep experience in a broad range of industries, Michael has a keen interest in the healthcare, higher education, museum, and arts & music sectors. He is dedicated to supporting clients in these areas, leveraging his extensive experience to address the specific challenges faced by institutions and organizations in these fields.

Michael regularly partners with clients to establish positive employee relations. In labor relations matters, he negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Michael’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He reviews and develops policies and procedures, written information security plans and integrated compliance programs to ensure his clients meet their obligations under privacy and data security laws. Michael represents clients in investigations of alleged data breaches and advises them on reporting obligations.. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.