Pay Attention to the NLRB’s Social-Media Reports

The law on what you can and can’t tell employees about what they can and can’t say on Facebook, Twitter and any other social-media platform is evolving, to say the least.

And if you didn’t see or hear anything about the National Labor Relations Board’s second report on social-media cases, issued late last month, consider this your red flag. Better keep up with these reports. Each one has a certain nuance and emphasis.

Just six months after issuing his first report (here is my post detailing that one), NLRB Acting General Counsel Lafe Solomon has put out his Operations Management Memo (the PDF of this is contained in my link above), which covers 14 cases, “half of which involve questions about employer social-media policies. Five of those policies were found to be unlawfully broad, one was lawful and one was found to be lawful after it was revised,” a statement from the NLRB reads.

The remaining cases involved discharges of employees after they posted comments to Facebook, several of which were found to be unlawful because they flowed from unlawful policies and one which was upheld despite an unlawful policy because the employee’s posting was not work-related.

The latest report underscores two main points made in the first report: 1) “Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees,” and 2) “An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees,” it states.

“Given the new and evolving nature of social-media cases, [Solomon] has asked all regional offices to send cases [they] believe to be meritorious to the agency’s Division of Advice … in the interest of tracking them and devising a consistent approach.”

Employment lawyers, meanwhile, are quick to point out that the board’s social-media rules — and potential liabilities — for employers are, indeed, changes from prior guidances on employee communication.

“These standards are not the same as for talk around the workplace water cooler,” says Doreen Davis, co-chair of the traditional labor practice at Philadelphia-based Morgan, Lewis & Bockius. “Especially if posts are made from home, not work, and during non-work hours, the NLRB considers that they pose much less chance of disrupting the workplace.

“As a result,” she says, “the labor board is going to allow for much more leeway by employees to post negative comments about the employer, and the employer may not be able to lawfully discipline for the posts, regardless of its Internet policy.”

Ballard Spahr, also based in Philadelphia, released this caution to employers: “In sum, the board remains highly critical of most broadly worded policies seeking to regulate online comments that disparage employers, supervisors or co-workers, but recognizes that employee postings not clearly part of, or looking toward, group action are unprotected and the proper subject for discipline.”

So, basically, there’s good news and bad news. Individual griping, not involving the sharing of common employee concerns, does not equal a National Labor Relations Act-sanctioned protected activity.

On the other hand, Ballard Spahr’s release says, “the board continues to view as impermissibly overbroad policies that generally prohibit ‘disparaging’ or ‘inappropriate’ comments, ‘disrespectful’ conduct, or the disclosure of ‘sensitive’ or ‘confidential’ matters. The inclusion of a ‘disclaimer’ or ‘savings clause,’ which pledges that the employer will not enforce its policy in violation of law, is insufficent to rescue an otherwise overbroad rule.”

Social media under the NLRA, it says, “remains an emerging area of the law and employers must tread carefully when drafting workplace policies that address employee participation in Facebook, Twitter and other online forums. Because the NLRA protects the right to take action for ‘mutual aid and protection’ in both union and non-union workplaces, the NLRB’s ongoing social-media analysis will have a far-reaching impact on workplaces across the nation.”

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