Background
As social media continues to play a pervasive role in advertising, marketing, and our day-to-day lives, employers must be aware of how they can lawfully regulate their employees’ social media activities. The National Labor Relations Board (“NLRB”) has released three reports analyzing specific employer social media policies.
However, without first understanding Sections 7(a) and 8(a) of the NLRA (that’s “National Labor Relations Act”, if you care or are inclined to look up the whole law on-line), a discussion of the NLRB analyzed policies cases is premature. I’ll discuss the NLRA Sections in this post, and then discuss the NLRB reviewed policies and how they impact employers, in my next post (I know, I know, you can hardly wait, but it will be here soon enough. This Thursday, in fact.).
Discussion
Section 7(a) was enacted to allow union and non-union workers to communicate with one another regarding working conditions, their work organization, and their work place. This Section gives employees the “ . . . right . . . to engage in other concerted activities for the purpose of . . . mutual aid or protection, . . .”
The two most important words in this rule are “concerted activities”, meaning communication or interaction between two or more employees. These words are broadly interpreted by the NLRB.
If a single employee is speaking out on behalf of other employees, or it’s anticipated other employees would join in one person’s rants or discussions, the NLRB considers these “concerted activities.” Concerted activities also include preliminary discussions (even by one person alone) that “seek to initiate or to induce or to prepare for group action.” However, individual gripes are not protected.
Importantly, as well, the activities must deal with working conditions, job performance of co-workers, the work organization, or the work place in general, and must have more than just an attenuated relationship to work.
Section 8(a)(1) prohibits employers from interfering, restraining or coercing employees in the exercise of their rights under Section 7.
An employer violates Section 8(a)(1) if its policies “reasonably tend to chill employees in the exercise of their Section 7 rights.” This happens if Section 7 activities are explicitly restricted, or if: (1) the employee could reasonably construe the language to prohibit Section 7 activity; or (2) the rule has been applied to restrict Section 7 rights.
Employers must understand the NLRB, when applying theses tests, prohibits activities an employee could potentially interpret as infringing on their activity, not policies an employee would reasonably interpret as prohibiting permitted activity. In other words, the NLRB looks at the mindset of the employee to determine whether a questionable policy is unlawful.
Why You Should Care
The NLRB’s approach in analyzing Social Media policies means even reasonable policies can be unlawful merely because an employee could potentially interpret them as restricting concerted activities. The result is employees have been more likely to bring claims against employers (even if the policy is ultimately held not to violate the NLRA). This fear of lawsuits has resulted in employers contemplating fewer limitations on social media policies. Of course, these permissive policies pose other risks for their business. Now, come back this Thursday for a discussion of specific policies that the NLRB has reviewed.
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