How to Beat the NLRB

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As social media usage continues to soar, you should establish a social media policy, if you haven't yet. Such a policy communicates to employees your expectations on the use of social media sites, such as Facebook, Twitter, YouTube, etc., as they relate to your business. If you already have a policy, good for you!

Now take a little time to review it to make sure it's legally compliant, especially in light of guidance from the National Labor Relations Board (NLRB.) Even if you are not a union shop you need to take NLRB guidance and rulings seriously. Why? Read on.

The Acting General Counsel of the NLRB has just issued a report on employers' social media policies for the third time in less than a year. The report serves as guidance for employers as they craft and revise their social media policies.

In a nutshell, the NLRB has frequently determined that such polices are unlawful due to being overly broad, i.e. too restrictive in terms of an employee's right to engage in protected concerted activity in accordance with Section 7 of the National Labor Relations Act (NLRA.)

Such protection covers an employee's right, without fear of retaliation, to discuss their pay, benefits and other working conditions.

Section 7 says: "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 and protection, and shall also have the right to refrain from any and all such activities."

It's important to realize that Section 7 protection applies to union and non-union members alike; so even if your organization is not unionized, employees' rights to engage in concerted activity are protected. Your social media policy should not restrict that right. Further, you should understand that the use of social media, such as Facebook postings, for engaging fellow employees in conversation is considered by the NLRB to constitute protected concerted activity if the discussion involves pay, benefits or other aspects of working conditions. The protected discussion may well be mixed in with language that you or others at your organization find objectionable, such as disparaging remarks about supervisors or profanity. Although possibly offensive, it is nonetheless still protected.

Among the many policy excerpts addressed in the report, here are three to help give you an idea of where the NLRB is coming from. The excerpts are in quotation marks and italics with the NLRB's explanation immediately following in bold:

1. "Don't comment on any legal matters, including pending litigation or dispute."

NLRB: We found that the prohibition on employees' commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the Employer.

2. "Think carefully about 'friending' co-workers . . . on external social media sites. Communications with coworkers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your personal social media channels could become a concern in the workplace."

NLRB: The provision of the Employer's social media policy instructing employees to "[t]hink carefully about 'friending' co-workers" is unlawfully overbroad because it would discourage communications among co-workers, and thus it necessarily interferes with Section 7 activity. Moreover, there is no limiting language clarifying for employees that it does not restrict Section 7 activity.

3. "If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles. . .

Don't release confidential guest, team member or company information. . . ."

NLRB: We found this section of the handbook to be unlawful. Its instruction that employees not "release confidential guest, team member or company information" would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves-activities that are clearly protected by Section 7. The Board has long recognized that employees have a right to discuss wages and conditions of employment with third parties as well as each other and that rules prohibiting the communication of confidential information without exempting Section 7 activity inhibit this right because employees would reasonably interpret such prohibitions to include information concerning terms and conditions of employment.

Companies can get themselves into big trouble when they fire someone based solely on a social media posting that violates their social media policy. Of course, termination may be warranted when postings portend violence or constitute bullying, harassment, racial slurs or defamation. But when the employee addresses working conditions, you need to tread lightly. Getting qualified legal advice is usually a good idea when considering an adverse action; when related to the possibility of protected activity, it's a must!

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