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Social Technologies and Protected, Concerted Activity Online (Employers, This One’s For You…)

Purple CommunicationsTechnologies present opportunities for employees to discuss or document working conditions on social media sites like Facebook and Snapchat, and to communicate with employees through email and texting about employer activities. The National Labor Relations Board (NLRB) first addressed social media use in the workplace by analyzing a number of cases in 2011 and 2012, and issuing guidance then and rulings later that increasingly restrict the ability of employers to limit the use of social media by employees to discuss workplace issues. Employees are allowed to use workplace social technologies to engage in “protected concerted activity,” so writing a NLRB-compliant social media policy is critical to keeping unions out.

Presumptive Use of Social Technologies

The Purple Communications NLRB case (number 21-CA-095151) is still open, but the decisions to date concerning union organizing and email may stand. In this case, the Communication Workers of America (CWA) lost a union election to represent Purple Communications employees and filed an unfair labor practice charge. The charge alleged the employee handbook prohibited employees from using the employee email system for “activities on behalf of organizations…with no professional or business affiliation with the Company,” violating the NLRA. The majority ruling held that employees can use email for protected communication when off work if the employer gives employees access to the business email system, creating a presumptive right to use the email system for organizing.

Chilling Policies Need Thawing

Your employee policies cannot be so broad that they chill or prohibit employees from engaging in protected concerted activity. For example, in Costco Wholesale Corp. (358 NLRB No. 106 (2012)), the company policy stated that employees could be disciplined for any electronic posts that “damage the Company, defame any individual or damage any person’s reputation…” The NLRB ruled the policy restricted employees from complaining about working conditions. Nothing in the policy clarified that protected communications are excluded, which is why it violated the NLRA.

In the April 22, 2014 Landry’s case (ALJ Case No. 32-CA-118213), the NLRB decided an employer’s social media policy did not infringe on employee rights when the policy urged them to not do postings that could lead to “…moral issues in the workplace…” The NLRB concluded it is okay to ask employees to be civil as long as, once again, the policy does not restrict protected, concerted activity. This case illustrates the delicate balance between lawful and unlawful social media workplace policies.

NLRB Employee Handbook

Understanding how to write email policies for companies, or social media policies in general, that are NLRB-compliant is critical to minimizing employee charges of unfair labor practices and staying union proof. Once policies are written, they need to be communicated to employees so everyone – onboarding new hires and all current employees – are on the same page.