In today’s world, social media is a part of life. In order to protect productivity at work and protect the company’s reputation, among other things, some employers have implemented social media policies. Some of these social media policies have been challenged, arguing that the policy violates employee rights under the NLRA.
In 1935, the National Labor Relations Act (“NLRA”) was enacted to protect the rights of employees and employers. Essentially, the NLRA created basic rights for private sector employees to organize into trade unions, engage in collective bargaining for improved conditions at work and take collective action.
Specifically, Section 7 of the NLRA states that employees have the right to engaged in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. This definition is broadly applied and is triggered when two or more employees act together to improve working conditions or wages. It also encompasses when one employee is acting on behalf of other co-workers or if other co-workers are involved. The definition does not apply to an employee’s individual gripe if no group action is contemplated.
National Labor Relations Board “Legal Test”
The National Labor Relations Board (NLRB), which investigates unfair labor practices charges, applies a legal test to determine if any policy, including a social media policy, “would reasonably tend to chill employees in the exercise of their Section 7 rights.” A policy is considered unlawful if it explicitly or implicitly restricts Section 7 activities because:
- Employees would reasonably construe the policy’s language to prohibit Section 7 activity;
- The policy was promulgated in response to union activity; or
- The policy has been applied to restrict the exercise of Section 7 rights.
Policies that the NLRB Has Deemed Violations
Some of the policies deemed as violations of the NLRA have been:
- A policy that stated employees could not “blog, enter chat rooms, post messages on public websites or otherwise disclose company information that has not already been disclosed as a public record;”
- A policy prohibited employees from contacting the media since the language could be construed as prohibiting any and all such protected communications to the media regarding a labor dispute;
- A social media policy prohibiting disclosure of wages or compensation to a third party or to any other employee.
The NLRB tends to focus enforcement of the NLRA on policies that are very broad in nature if the policy can be construed to limit:
- Critical statements about the company or managers,
- Discussion of wages, hours, and other terms and conditions of employment, and
- Discussions with union representatives and co-workers.
It should be noted, however, that a policy can be deemed a violation even if there is no evidence that the policy has been enforced.
It is also unlawful for an employer to take adverse action against and employee who has engaged in Section 7 protected actions.
Employers need to be cognizant of their social media policies in order to ensure that any policies do not prohibit an employee’s rights under the NLRA. As discussed, the more specific a policy is, the lesser chance it will be deemed a violation.