Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media. Employers who terminate an employee based upon a social media posting that ultimately is determined to have been “protected concerted activity” may be violating Section 7 of the NLRA. An employer’s discipline or termination of an employee, if found to violate the NLRA, can lead to legal liability that may result in financial damages and reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers who are trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information.
In August 2011 and January 2012, the Acting General Counsel of the National Labor Relations Board (NLRB) issued reports that both dealt with cases arising in the context of employee communications via social media. Those reports provided to employers a glimpse into the NLRB’s rationale for dealing with cases in which employees claim that an employer’s disciplinary action based on a social media posting violated Section 7 of the NLRA. But those reports did little to stem employers’ concerns related to the delicate balance between employees’ rights to open communication with each other, and implementation and enforcement of company policies related to communications via social media.
On May 30, 2012, the NLRB issued its third report. This one was dedicated primarily to social media policies. The report summarized seven different policies, pointing out provisions in the first six which may be in violation of Section 7 of the NLRA, but holding up the seventh policy – newly revised by a national retail chain — as “lawful.”
Some of the examples of “unlawful” language in the first six policies may cause some concern among employers. For instance, one company’s policy stating that employees who were in doubt as to whether a posting might violate the policy should “check with [Employer] Communications or [Employer] Legal to see if it’s a good idea . . . .” was deemed a violation of law because a “rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities” automatically violates the NLRA. A company’s policy that required employees to assure that “posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site” was deemed to be unlawfully overbroad and, according to the NLRB, could “reasonably be interpreted to apply to discussions about, or criticism of the Employer’s labor policies and its treatment of employees that would be protected by the [NLRA]. . . .” Of real concern is the NLRB’s evaluation of this company policy: “Offensive, demeaning abusive or inappropriate remarks are as out of place online as they are offline.” According to the Board, that statement is in violation of Section 7 because it “proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”
Employers should disabuse themselves of the notion that a “savings clause” (for example, “This policy will be administered in compliance with applicable laws and regulation, including Section 7 of the NLRA.”) will satisfy the NLRB from finding its policy to be unlawful. Such a provision, according to the May 30 report, “does not cure the ambiguities in [a] policy’s overbroad rules.”
What can an employer do to meet the standards set forth by the NLRB in this latest report? Luckily, the Board provided a roadmap in the form of an “acceptable” policy. According to the Board, the key to that policy’s lawfulness is that the policy “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rule to prohibit Section 7 activity.” While a number of the policy’s provisions are as broad as those found by the NLRB to be in violation of Section 7 in other policies, the concrete examples of what does and does not violate the policy seems to have satisfied the concerns that the Board expressed regarding the six earlier examples.
While some employers may assume that the easiest way to assure full compliance with Section 7 is simply to use the exemplar policy in its totality, those employers should understand that company policies typically are not one-size-fits-all. A more practical solution would be to review the exemplar policy carefully, and then tailor its core concepts to fit the values and existing needs of the specific employer. It also is important to continue to pay attention to the development of case law in this area, to assure an understanding of how the courts will interpret this latest NLRB report.