By Michael N. Westheimer
Social media on the Internet have become enormously popular in recent years as more and more people log on to chat, blog and post updates on an infinite variety of topics. In response to this phenomenon, many companies have created social media policies seeking to regulate what employees say about their jobs.
Social media policies serve a variety of purposes as companies endeavor to preserve trade secrets, comply with industry regulations, prevent discrimination and harassment, and protect the company's brand in connection with its products and services.
As social media policies become more prevalent, they also have come under fire in unfair labor practice charges to the National Labor Relations Board (NLRB). These charges are being brought by non-union and union workers alike, some resulting in determinations that the policies violated employee rights under the National Labor Relations Act (NLRA) to engage in concerted activity.
NLRB guidance also indicates that this potential risk can be minimized by carefully drafting social media policies to strike the right balance between safeguarding the company's legitimate objectives without infringing on employees' protected rights.
NLRA Right to Engage in Concerted Activity
Section 7 of the NLRA provides that employees have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."1 Section 7 rights encompass union activities such as collective bargaining, as well as other activities for mutual aid or protection that also are applicable in a non-union context. Understanding the parameters of protected concerted activity is a key issue for crafting a legally compliant social media policy.
The NLRB broadly interprets concerted activity under Section 7 as covering situations where two or more employees act together to improve wages or working conditions, as well as when only one employee acts and other co-workers are involved or the employee is acting on their behalf. By contrast, protected concerted activity does not include purely personal gripes without any contemplation of group action, and Section 7 protection can be lost if an employee engages in malicious behavior or sabotage, defames the company's product or discloses trade secrets.2
In determining whether a policy unlawfully restricts employees from engaging in concerted activity, the NLRB applies a legal test that analyzes whether the policy "would reasonably tend to chill employees in the exercise of their Section 7 rights."3 A policy is unlawful if it explicitly restricts activities protected by Section 7 or if it implicitly restricts such activities because:
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