The use of social media is omnipresent with respect to most companies now. Whether an enterprise is savvy enough to employ social media on its own behalf for marketing purposes, or whether it has social media exposure simply by virtue of its employees’ personal use of Twitter, Facebook and other applications, there is a very tangible impact created. Not only is this impact commercial and reputational, it can be legal in nature.
Recently, the National Labor Relations Board (NLRB or the “Board”) has developed a keen interest in employers’ attempts to regulate their employees’ social media use. Its primary tool in this effort has been the National Labor Relations Act (NLRA or the “Act”), a federal law passed in 1935 to protect employees’ right to organize unions and engage in collective bargaining.
Since the applicability of the Board and the Act to social media can be difficult to ascertain on first blush, the NLRB has recently issued specific guidance about how NLRA provisions govern here.
One of the primary purposes of the NLRA is to allow workers to freely communicate with one another regarding complaints about terms and conditions of employment and perceived instances of unfair treatment. Examples of covered topics include accusations of workplace racism, departmental complaints, complaints about unfair demands and duties, and other labor disputes. The fact that this communication is now increasingly taking place via social media has created the natural tie-in between social media and the Act.
In practical effect, if a particular communication has the above subject matter, the Act is now permitting employees to make public social media posts about a company or their workplace so long as more than the singular employee is involved (i.e., the post can be construed as part of a discussion with fellow employees and a potential motion toward labor organization around a workplace issue).
Some notes on the practical implications for employers:
1. Even a “like” from a fellow employee regarding a post may be enough to constitute such collaborative employee action! However, the gripes of an individual aggrieved employee that are not in some way approved or supported by fellow workers will not generally constitute a communication subject to the NLRA.
2. Application of the Act to social media doesn’t hinge on whether the employer is unionized or non-union – the protections are universal.
3. A company must be extremely careful about terminating an employee because of any work-related social media post, whether on Facebook, Twitter or elsewhere. One major tightrope to walk here occurs if the post somehow implicates a company’s proprietary information or trade secrets. If it does, the company must protect its confidential information, but its general social media use policy cannot impede the protected flow of labor-related communication about, e.g., wages or working conditions.
4. At present, an employer can, via its social media use policy, request that employees confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws (see earlier post about Groupon and securities law issues). A social media use policy may also include such restrictions as are necessary, for example, to address HIPAA or security regulations.
5. In connection with (4) above, the NLRB has also ruled that, since employees do not have a protected right to disclose “embargoed” information such as trade secrets or confidential information in the first place, employees would not reasonably interpret a legitimate social media use policy with proscriptions on posts with this subject matter as disallowing communications about the terms and conditions of their employment. This, of course, weighs in favor of an employer’s right to protect its trade secrets and confidential information, so long as the employer policy is sufficiently explicit about what is off limits for social media communications.
6. Based on current litigation described in a recent post here, employer policies for social media should also address the ownership of content in social media accounts that are purposed for the benefit of the employer.
While it would have initially seemed a fairly simple task, issues like the above are the reason that legal counsel is a must when drafting an employee social media use policy.