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Coming Into Focus – The NLRB’s View on Acceptable Social Media Policies

The rise of social media, and the desire of employers to both control and police it as to their employees, has served to expose, to many for the first time, that the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, et. seq. applies not just to unionized work places but to virtually all private employers of any significant size engaged in interstate commerce. Section 7 of the NLRA protects employees’ rights to engage is what is commonly referred to as “concerted protected activity” for their mutual aid and protection in both unionized and un-unionized work places. Pre-social media this activity was typically not that difficult to spot because it commonly manifested itself as two or more employees talking face-to-face about working hours, pay, work conditions, etc. If an employee was acting alone, and thus, not part of concerted activity, it was typically easy to spot as well. However, with the rise of Facebook, Twitter, YouTube and other social media outlets, what is and is not protected activity has become less clear due to the lack of clear employee interaction, and the question of what is in fact protected activity is an increasingly important question as employers struggle with what to do about employee electronic posts or communications which they do not agree with and feel merit adverse employment action. This is especially true where these communications concern what is felt to be confidential or proprietary information.

The initial reaction of many employers with the rise of social media was to simply forbid electronic posts or communications which were negative to the employer or fellow employees and to move aggressively to discipline employees whose electronic communications and/or posts they disagreed with, but such blanket prohibitions for the most part will no longer suffice and change must be made.

Hence, the guidance of the National Labor Relations Board (“NLRB”) must increasingly be considered. The NLRB is charged with protecting the right of employees under the NLRA, and in the past two years its position as to what it views as permissible social media policies has steadily come into focus. Exceedingly broad polices which address social media have increasingly been challenged and overturned, and employers now must be ever vigilant if they want to effectively regulate the social media practices of their employees. On just June 18, 2012 the NLRB launched a website, www.nlrb.gov/ concerted-activity, specifically focused on the issue of protected concerted activity, and
even a cursory review of that web-site illustrates the NLRB’s increasing focus on social media policies and the increasing importance of this issue.

The question then becomes, where can one look to see what social media policies would potentially pass NLRB scrutiny and be NLRA compliant? Since August 18, 2011 Lafe Solomon, the Acting General Counsel for the NLRB, has issued three reports intended to specifically provide employers guidance on what are and are not permissible social media policies under the NLRA. These reports, which address and comment upon recent case developments in the context of social media, show the position of the NLRB on permissible social media polices coming into clearer and clearer focus in the past year alone to the point that specific policy language has been more or less endorsed by the
NLRB. Employers should be aware of this clarifying position and potentially modify their policies to survive challenge, and employers should continue to monitor the position of the NLRB as its position on the issue of social media further sharpens over time.

While these three reports, Memorandum OM 11-74 (August 18, 2011), OM 12-31 (January 24, 2012) and OM 12-59 (May 30, 2012), only represent the opinion of NLRB’s Acting General Counsel, they are generally indicative of how the NLRB would address certain social media policies should an issue arise with them. Addressing these three reports briefly, the trend which emerges is that the NLRB will readily find a violation of the NLRA when any social media policy would “reasonably tend to chill”
employees from exercising their rights under section 7 of the NLRA. Such a policy has been identified as one which merely prohibits, without explanation or definition, employee electronic communications about working conditions, pay or job performance. A policy which also globally prohibits negative public comments about the employer in all contexts will also likely not survive challenge.

The key then is providing specific definitions or guidance as to what an employer considers inappropriate social media activity which will be regulated and that the policy does not limit protected activity. Policies cited by the Acting General Counsel in the reports as being rightfully upheld include the following:

• A media policy designed to ensure a consistent, controlled company
message and which limits employee contact with the media only to the
extent necessary to achieve that result, i.e. a requirement that only certain
individuals can identify themselves as speaking for the company.
• A policy prohibiting use of social media to post or display comments
about coworkers, supervisors or the employer that are vulgar, obscene,
threatening, intimidating, bullying, harassing or a violation of specific
employer discrimination or harassment policies; however, there is a fine
line with such a policy and great care must be taken with drafting it so that
its scope is sufficiently clear.
• A policy prohibiting disclosure of confidential and/or proprietary
information where the terms “confidential” and “proprietary” are clearly
defined and examples given;

There are many others, but the difference between a policy which has been blessed and one which was not by the NLRB can be frustratingly subtle, so any policy considered for adoption should be individually scrutinized.

Probably most of use, the May 30, 2012 report of the Acting General Counsel produced in its entirety a social media policy which was endorsed by the NLRB, and as such, it provides the clearest example as yet of what the NLRB views as a valid social media policy. However, that policy is likely not ideal for all employers, and based upon the evolution of the law on this issue it should not be considered the end of the story. In this changing area of the law it is vital that employers stay ever vigilant if they wish to control and/or regulate the social media activities of their employees. The free guidance provided by the NLRB should be utilized, and employers should take great care in drafting any social media policy to make sure that it does not unnecessarily or overly regulate their employees’ electronic communications. As it clear, this issue is one which will only grow in importance as social media’s role in all our daily lives continues to expand and the forums in which employees can express themselves publically continue to multiply.

© 2021 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume II, Number 213

About this Author

Luke A. Wingfield, Insurance Attorney, McBrayer Law Firm

Through over twelve years of practice Luke Wingfield has developed a diverse practice and obtained extensive trial experience throughout the courts of the Commonwealth of Kentucky. Mr. Wingfield's practice is concentrated in a number of areas, the first being insurance defense and insurance coverage matters. Mr. Wingfield on a near daily basis defends the insureds of insurance companies in cases ranging from wrongful death claims, to premises liability, to construction defects, and essentially everything in between. He also routinely handles declaratory judgment actions seeking to...