Stop the presses. For a year and a half, I’ve been reporting on what the National Labor Relations Board (NLRB) is finding wrong with employers’ social media policies. Now, I get to bring you one that the Board’s Acting General Counsel Lafe E. Solomon calls “lawful” under the National Labor Relations Act (NLRA).
The NLRB’s biggest complaint with employers’ social media policies has been that they violate employees’ Section 7 rights under the NLRA, which grants employees the right “to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Act protects virtually all nonsupervisory employees, not just those represented by a union.
Under the NLRA, employers may not “interfere with, restrain, or coerce employees in the exercise of” their Section 7 rights. But that’s just what the NLRB has accused many employers of doing by implementing “overly broad” or “ambiguous” social media policies that put restrictions on employees’ online activity. What appears to set apart the most recent NLRB-approved social media policy is the clear examples of misconduct the employer provides throughout.
In particular, Lafe writes about the “Be Respectful” section of the policy, “In certain contexts, the rule’s exhortation to be respectful and ‘fair and courteous’ in the posting of comments, complaints, photographs, or videos, could be overly broad. The rule, however, provides sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct.”
The specific examples Lafe highlights include:
- counseling employees to avoid posts that “could be viewed as malicious, obscene, threatening or intimidating” and;
- explaining that prohibited “harassment or bullying” would include “offensive posts meant to intentionally harm someone’s reputation” or “posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”
If you want to read more of Lafe’s commentary or see the social media test that passed the test in full (it’s at the end of the PDF), you can find on the NLRB’s website.
So that’s the good news about the report. The bad news is that it included six other social media policies that the NRLB found unlawful. But don’t let that bother you too much. Our partner in blog and frequent contributor Molly DiBianca has a lot to say about the current report, on the Delaware Employment Law Blog. My favorite part is this:
The NLRB is just killing it, right?!? It publishes three “reports,” none of which are binding, none of which constitute precedent of any sort, and none of which have been reconciled by the smartest minds around. It could be said, in other words, that the three reports are worth a whole lot of nothing.
If you are feeling uneasy about the NLRB coming after your company’s social media policy, you should definitely check out the rest of her post on the Delaware Employment Law Blog.
– Celeste Blackburn