On January 25, 2012, the National Labor Relations Board’s General Counsel issued a press release that a second report describing social media cases reviewed by the NLRB has been made available. The first NLRB social media report (PDF) was released in August 2011.
According to the NLRB’s press release, this second NLRB report (PDF) was needed to address emerging social media issues. The NLBR further explained:
Cases concerning the protected and/or concerted nature of employees’ social media postings and the lawfulness of employers’ social media policies and rules continue to be presented to the Regional Offices … In addition, these issues and their treatment by the NLRB continue to be a “hot topic” among practitioners, human resource professionals, the media, and the public.
The NLRB’s second report covers 14 cases. Half of those cases involve questions about employer social media policies. It is noteworthy from the employer perspective that five of those policies were found to be unlawfully broad and one was found to be lawful after it was revised.
Broad “Savings Clauses” Excluding Section 7 Rights and Activities Not Good Enough
Employers and HR professionals should definitely read both reports. But one case jumped out at me as particularly important. This is because I’m seeing a number of employers follow a similar approach that the NLRB found to be a violation of Section 7 Rights under the National Labor Relations Act (NLRA) when it comes to drafting social media policies.
Specifically, page six of the report discusses a case where the NLRB found that an employee’s discharge for Facebook comments about the employer was lawful, but the employer’s social media policy was not.
In that case, the employee was reprimanded by a manager and later on the employee’s lunch break she updated her Facebook status with a comment consisting of an expletive and her employer’s store. She was later terminated for this and similar Facebook comments. Again, the termination was lawful.
In regard to the employer’s social media policy, it provided that when it comes to social networking, employees should generally avoid identifying themselves as employees of the employer unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.
This social media policy was found to violate the NLRA generally for two reasons:
- First, the social media policy’s use of “appropriate” was not defined and it implicitly means that the social media policy prohibited “inappropriate” discussions of terms and conditions of employment.
- Second, and here is where employers should pay particular attention: The NLRB specifically found that a “savings clause” provision in the employer’s social media policy did not bring the policy back into compliance with the NLRA.
That savings provision informed employees that the employer’s social media policy would not be interpreted or applied so as to interfere with employee rights to self-organize; form, join, or assist labor organizations; to bargain collectively; or to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection.
Personally, I found the explanation for why this provision did not save the social media policy from violating the NLRA to be unsatisfactory. But the fact remains that drafting a broadly worded social media policy that may prohibit conduct protected by the NLRA only to note that the social media policy will not be applied to violate the NLRA is not going to pass muster under the current NLRB regime.
Shakespeare is credited with the observation that “the devil can cite Scripture for his purpose.” And it may appear that the NLRB will find a social media policy violates an employee’s NLRA rights and then selectively look to the employer’s policy to support the violation.
None-the-less, the above case should motivate employers to rethink, rather than double down on drafting broad social media policies that contain ambiguous or poorly defined meanings and expect such policies to pass muster with the NLRB simply because an equally broad savings clause provision carves out Section 7 rights and activities.
If there is a bright spot, the NLRB’s increased attention on social media issues is also providing a road map (even if the terrain is not entirely charted out) in the form of cases for employers to follow when it comes to drafting and implementing social media policies.
In that regard, it is important to have a competent “social media legal sherpa” familiar with this dynamic intersection of social media, employment, and labor law. Otherwise employers may find themselves in a nasty collision with the NLRB at this intersection.