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Bar News - April 13, 2012


Labor & Employment Law: Social Media and the NLRB – Business Beware

By:

New and exciting developments are a hallmark of the social media revolution. The least expected development, however, is that social media conduct would be regulated by the National Labor Relations Board (NLRB). Over the past few years, the NLRB has reviewed more than 150 social media cases, filed numerous complaints against businesses, issued a number of written decisions, and published two reports summarizing its position. Is the NLRB’s activity justified and helpful, or an unwarranted hindrance? The courts have not resolved that issue yet. Until then, businesses should beware not to unwittingly stumble into these legal problems.

Businesses with non-unionized workforces often do not expect to be governed by the NLRB, and are understandably unfamiliar with the National Labor Relations Act (Act). However, the NLRB’s reach into social media has not spared non-unionized businesses. In fact, the NLRB has targeted these types of businesses in the majority of social media cases it has pursued.

While the Act primarily addresses union-related activities, one provision applies to all businesses, even those without unionized workforces. It is referred to as the ‘concerted activity’ provision, and states as follows: "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."

It is not surprising that the Act protects concerted activity designed to form a union, and perhaps not surprising that it protects non-union activities designed for the mutual aid and protection of a workforce. What is surprising is the NLRB’s intensive focus on social media, as if it were a special forum for concerted activity. Also surprising is the breadth of the NLRB’s application of the concerted activity provision to social media conduct.

The NLRB’s intervention impacts businesses in two ways. First, it has targeted policies – both general policies and social media policies – that could possibly chill concerted activity. Second, the NLRB will protect an employee from discipline or discharge related to any social media conduct that qualifies as concerted activity.

Many Legitimate Policies and Practices are Unlawful

According to the NLRB, the mere maintenance of a formal or informal policy or practice violates the Act if it reasonably tends to chill employees’ exercise of their right to engage in protected concerted activity. Thus, if a policy or practice explicitly restricts activities protected by the Act, it is unlawful. However, even if a policy or practice does not do so, it still is unlawful if (1) employees would reasonably construe it to restrict or prohibit concerted activity, (2) it is applied to restrict or prohibit such activity, or (3) it was created in response to such activity.

Many entirely legitimate and seemingly innocuous policies and practices have been declared unlawful by the NLRB on the basis that they could be construed to restrict or prohibit concerted activity or were applied to such activity. Important examples include the following:
  • Confidentiality policies that prevent employees from disclosing information about working conditions on the basis that such information is confidential are unlawful. The language of these policies cannot be so general that employees could consider such conduct prohibited, and the policies should list specific examples of other types of confidential information that the company seeks to protect.
     
  • Conduct policies prohibiting acts or statements that are defamatory, derogatory, disrespectful, unprofessional, insubordinate, or inappropriate have been found unlawful on the basis that employees could construe them to apply to conduct necessary to or appropriate for concerted activity. By contrast, conduct policies prohibiting vulgar, obscene, threatening, intimidating, harassing or discriminatory acts or statements have been upheld, if narrowly tailored and properly applied.
     
  • Media policies prohibiting employees from communicating with the media or publicly about the company are unlawful.
     
  • Social Media policies that could be viewed to restrict or prohibit concerted activity are risky. For example, such policies cannot prohibit employees from identifying themselves with the company, or from using the company’s name, logo, or trademark in social media communications. The NLRB similarly has found unlawful policies designed to comply with securities and Federal Trade Commissions regulations, unless the policies are narrowly tailored and clearly state that they apply only to those circumstances.
A critical component of all policies is an explicit statement that the company will not apply them to restrict or prohibit employees from engaging in concerted activity. However, the NLRB also has found a social media policy unlawful, even though it contained such a savings clause, on the basis that the clause was inadequate for the policies and circumstances at issue.

Concerted Activity Encompasses a Broad Spectrum of Conduct

Activity is concerted if it is engaged in with or on behalf of other employees. This includes the acts of a single individual if the employee is seeking to initiate, induce or prepare for group action, or raises group issues to the attention of the company. In fact, a mere conversation between two employees may be concerted activity, even though it involves only a speaker and a listener, as long as it has some relation to actual or potential group action.

The breadth of protection afforded to concerted activity has significance to social media, which frequently involves online conversations about work between employees who are social media "friends." To the extent social media dialogue involves working conditions – such as wages, job duties and performance, or even just the atmosphere at work or a supervisor’s management style or attitude – the conversations are protected. Similarly, online conversations that may initiate group action, are group dialogue, or continue prior group conduct are equally protected.

The NLRB has recognized some safe harbors for companies where an employee’s conduct amounts to mere griping, or the conduct is so egregious that it will not be protected. These exceptions, however, are so narrow and/or fact-intensive that they are typically unreliable.

Businesses Should Be Ready and Beware

Because most non-unionized businesses are unfamiliar with the National Labor Relations Act, there is very real danger that they may unwittingly stumble into legal problems with the NLRB’s protection of social media conduct. As a result, all businesses should become aware of this area of the law, carefully review their policies to determine whether they could be perceived as chilling concerted activity, and revise their general policies and adopt social media policies that comply with the current requirements of the law. Businesses also should take great care when disciplining or discharging an employee for any social media related conduct to ensure that the conduct does not entail protected concerted activity.



Cameron G. Shilling


Cameron G. Shilling is a director at McLane, Graf, Raulerson & Middleton, where he leads the Privacy and Data Security Group. Cam can be reached at cameron.shilling@mclane.com or 603-628-1351.

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