Social media or networking websites like YouTube, Facebook and LinkedIn present employers with a new set of challenges. These fora have obvious business-related benefits—for example, they can provide legitimate business networking and marketing opportunities. However, they can also result in wasted worktime. Even worse, these sites sometimes serve as a forum for employees to disclose to the public (clients and coworkers included) workplace matters employers would rather keep in-house. The metaphor of the “water cooler” conversation takes on a whole new meaning when the watercooler is broadcast to the world.

Proactive employers may wish to monitor or limit the potential negative workplace effects of social media and networking by, for example, creating policies delineating the appropriate use of social media sites. A recent complaint filed by the National Labor Relations Board (“NLRB”) reminds employers that it is important to carefully craft these policies to ensure they do not violate the law.

Does Labor Law Protect Facebook?

According to the NLRB complaint, American Medical Response of Connecticut, Inc. (“AMR”) employee Dawnmarie Souza requested union representation for an investigatory interview that she had reasonable cause to believe would result in disciplinary action. The interview included the preparation of a written investigatory report. AMR denied her request, and Souza was required to complete the report without representation. Later, two supervisors threatened her with disciplinary action because she had requested representation.

Souza apparently had a page on Facebook, where she interacted with other employees. From her home computer, Souza criticized one of the supervisors on her Facebook page. This led to supportive comments from coworkers, and more negative comments about the supervisor from Souza.

AMR suspended and later terminated Souza because her postings violated AMR’s Internet policy. AMR’s policy broadly prohibited employees from making any disparaging, discriminatory, or defamatory comments when discussing the company or the employees’ superiors, coworkers, and/or competitors.

The NLRB’s general counsel alleged that AMR interfered with Souza’s “Section 7” rights under the National Labor Relations Act (“NLRA”). Section 7 of the Act protects an employee’s right to engage in “concerted, protected activity.” Employees have the right to discuss the terms and conditions of their employment with their coworkers. Employees have Section 7 rights even when they work in a non-unionized environment.

Employer Policies and Section 7 Rights

Complaints based on violations of Section 7 rights arise in a variety of contexts. They often involve employers’ attempts to limit non-work-related communication among employees and third parties, such as unions. In recent years, NLRB decisions have addressed electronic communication policies limiting emails, websites and blogs.

Employers cannot create policies that will have the effect of “chilling” Section 7 rights—that is, will discourage employees from talking with each other about protected subjects — wages, hours, and other terms and conditions of employment. The NLRB has held that an improperly written policy, on its own, can have this “chilling” effect, even absent evidence the employer enforced the policy.

For example, in Lafayette Park Hotel, the hotel’s “Standards of Conduct,” policy included a long list of prohibited behavior including, among other things, “being uncooperative” with supervisors and others, “divulging Hotel-private information,” and “unlawful or improper conduct off the hotel’s premises.”

The NLRB found that most of the employer’s standards of conduct did not chill Section 7 rights, because employees could not reasonably understand the standards to be aimed at preventing them from talking with each other about their working conditions. For example, the NLRB found that the employer’s prohibition on disclosing “Hotel-private” information could not be construed to mean employees were prohibited from talking about their wages and other terms and conditions of employment. The employer was entitled to have such a rule to prohibit the disclosure of confidential information. Because the policies were intended to address legitimate employer concerns for managing the workplace, and not intended to prohibit employees from organizing if they so chose, the policies did not violate the law.

However, the NLRB did find that a standard of conduct that prohibited “[m]aking false, vicious, profane, or malicious statements toward or concerning the Lafayette Park Hotel or any of its employees,” violated the NLRA. The NLRB relied on its previous holdings in similar cases, finding such statements were “overbroad.”

The NLRB also found that the hotel’s “Scheduling and Attendance” policy violated the NLRA. The policy required employees to leave the work premises immediately after their shifts, and not to return until their next shifts. Because employees could not gather in common, off-duty areas of the employer’s premises, such as parking lots, the NLRB determined the policy could reasonably be interpreted to chill Section 7 rights.

Section 7 and Social Media Policies

So, do social media policies always violate the NLRA? The answer is no. In a recent Advice Memorandum, the NLRB’s general counsel opined that a social media policy did not chill Section 7 activity. Sears Holdings had a social media policy that prohibited employees from discussing a variety of topics, including “[d]isparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” The stated purpose of the policy was “to ensure that the Company and its associates adhere to their ethical and legal obligations… The intent of this Policy is not to restrict the flow of useful and appropriate information, but to minimize the risk to the Company and its associates.” In an e-mail announcing the policy, Sears Holdings explained that it was issued in response to several public examples of companies whose reputations suffered as a result of inappropriate conduct by employees while using social media.

The International Brotherhood of Electrical Workers, a union that had filed a petition to represent service technicians working for Sears Holdings, filed a charge challenging the policy. The NLRB’s regional office sought advice from the general counsel’s office in Washington, D.C. Relying on previous NLRB rulings, the Office of General Counsel recommended dismissal of the charge. The general counsel explained that the rule would be unlawful if it explicitly restricted Section 7 protected activity (e.g., expressly prohibited discussion of wages, overtime, unionization, etc.). But the rule would still be unlawful if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule had been applied to restrict the exercise of Section 7 rights.

Addressing the “disparagement” ban, the general counsel’s memorandum explained that the inquiry should begin with a reasonable reading of the entire rule, not just particular phrases in isolation. Read more broadly, the rule was part of a list of “plainly egregious conduct” that the employer prohibited, such as conversations about proprietary information, explicit sexual references, and disparagement of race or religion. In other words, the purpose of the policy was not to prevent union activity. Moreover, there was no evidence that the employer had used the policy to discipline any employee engaged in protected activity, or that the policy was promulgated in response to union campaigning or other Section 7 activity. The Office of General Counsel found further support in the fact that employees continued to discuss union campaigning on a listserv after the employer implemented the policy.

Social Media Policies are Alive and Well

There was a lot of press coverage of the AMR complaint, some of which could mislead employers into thinking that Facebook is “off limits” to management regulation. First, AMR is just a complaint. There has been no trial, decision, or review by the NLRB or a court.

Second, the Sears Holdings memorandum is important because it concludes that an appropriately drafted social media policy is not prohibited by the NLRA. The AMR case is different from the situation in Sears Holdings for several reasons. Most importantly, the employee in AMR was actually represented by a union and denied representation. Thus, her Section 7 rights were more than just theoretical or potential.

Drafting a Social Media Policy

Given the applicability of Section 7 rights, even to employees in non-unionized environments, what can an employer do to control the appropriate use of social media without running afoul of the NLRA?

Certainly, employers can and should restrict the use of social media using company equipment and time. (The NLRB has made it clear that a complete prohibition could run afoul of Section 7, however.) Then, employers should enforce such a rule consistently. For example, an employer should not allow employees to check their Facebook pages during break time, but then attempt to prohibit them from doing so the first time the employer hears employees are communicating on Facebook to complain about working conditions that could implicate Section 7. Along the same lines, employers should not impose policies in response to unionization.

A well-crafted social media policy should explain its valid purposes: for example, to limit the possibility that employees improperly disclose private company information. The policy should make clear that employees are not authorized to act as representatives of the company. That is, if they identify themselves on these sites, or are identifiable as company employees, they should explain that their expressed views are their own, and should not be attributed to the company. Likewise, employees should be notified that they are not authorized to use company trademarks, logos, images, or to post confidential company information. Employees should be told whom to contact when they have questions about whether information is confidential.

Finally, recent case law suggests employees do not always think about who may be reading their posts. For example, employees claiming to need medical accommodations or leaves of absence have been caught posting status updates suggesting otherwise. As an alternative to prohibiting employees from speaking with each other about the work environment (and potentially running afoul of the NLRA), an employer should also remind employees that others, including co-workers, supervisors, clients, or other unintended parties, may read their posts. The notice should also make employees aware they are legally responsible for the content of their posts, so that if they defame others, reveal trade secrets, or infringe on another’s copyright, for example, they may be held personally liable. As part of a an appropriately crafted handbook, such a policy would not prohibit an employer from taking disciplinary action against an employee who engaged in inappropriate conduct unrelated to union organizing. However, it might provide the employer protection from a claim that the policy has the effect of “chilling” an employee’s Section 7 rights.

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