The Risks of Restricting Employees’ Social Media Access: How the Internet is Affecting the Interpretation of Labor Laws

The National Labor Relations Board (NLRB), the federal agency that monitors and investigates alleged unfair labor practices, has issued several reports over the past year addressing concerns about employers’ social media policies. Social media technology seems to evolve at an exponentially faster rate than our labor laws. Employers and labor advocates alike are constantly trying to catch up to the latest online service. For now, businesses may remain a step behind, but they have some anecdotal guidelines, courtesy of the NLRB, to assist them in creating social media policies and managing risks under state and federal labor laws.

Lafe Solomon, the NLRB’s Acting General Counsel, has issued a series of reports for employers, from which it may be possible to glean a set of guidelines on social media. The reports unfortunately do not contain a concise set of rules, but some basic principles are apparent. Knowing these rules is important because employers face the risk of complaints, investigations, and civil liability to their own employees if their social media policies violate labor laws.

The NLRB’s first report came out on August 18, 2011. The report examined several recent cases of employee social media activity, giving particular attention to whether the employees’ social media statements constituted “protected concerted activity.” This is a common term in labor law relating to actions undertaken by two or more employees for “mutual aid or protection” in their employment.

The NLRB concluded that many statements or postings on social media sites were protected concerted activity, including Facebook posts regarding job performance allegations, posts critiquing a company’s sales events, and posts discussing an employer’s tax withholding procedures. It found that posts on Twitter and other sites that addressed issues better brought up privately with a supervisor, or that unnecessarily disclosed details of the employer’s business activities, were not protected. The report also identified internet and social media policies it deemed unlawful, usually for being too “broad.” Policies that generally prohibited posting about employees’ personal matters violated the law, according to the report. The report’s twenty-four pages offer a range of do’s and don’ts, but they do not conclude with a coherent set of guidelines or principles.

An updated version of the report became available on January 24, 2012. It describes additional cases reviewed by the NLRB, several of which involved social media policies that the NLRB found to be overbroad and employee activity that the NLRB found not to be protected. The most recent updated report, released on May 30, examines seven cases, six of which involve overbroad, unlawful social media policies.

Perhaps the most important principle contained in the reports is the importance of enacting clear, unambiguous social media policies that focus on activity that directly impacts the employer’s business and its customers, and that provides specific examples of prohibited conduct to assist employees in understanding their responsibilities. Activity that raises legitimate concerns or complaints about the employer’s practices or policies is probably protected. Activity principally intended to harass or annoy an employer or fellow employee, or that exposes confidential information of the employer or a customer, most likely is not protected.

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Web Resources:

Memorandum OM 11-74, Report of the Acting General Counsel Concerning Social Media Cases (PDF), Office of the General Counsel, National Labor Relations Board, August 18, 2011

Memorandum OM 12-31, Report of the Acting General Counsel Concerning Social Media Cases (PDF), Office of the General Counsel, National Labor Relations Board, January 24, 2012

Memorandum OM 12-59, Report of the Acting General Counsel Concerning Social Media Cases, Office of the General Counsel, National Labor Relations Board, May 30, 2012

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Photo credit: ‘National Labor Relations Board logo – color’ by National Labor Relations Board [Public domain], via Wikimedia Commons.