Protecting the Company and Employee
For years, social media has caused a lot of angst among employers. It seems nearly impossible to monitor and manage what employees post about the workplace, management, and unions. But how does your company’s social media policy hold up within the context of the National Labor Relations Act (NLRA)? Of course, you want your HR policy on social media to discourage employees from disparaging their workplace and managers, while at the same time ensuring team members don’t feel like their voice is being silenced or their rights are being violated.
The National Labor Relations Board continues to issue decisions that guide what your social media policy can and cannot regulate to protect your company and your employees. Social media policy creation is challenging. Employer rights to restrict employee posts that could be harmful to the business must be balanced with those team members’ protected concerted rights to discuss their work with coworkers. If your policy isn’t legal, violating the NLRA could make it nearly impossible for your company to stay union-free.
(Note: The National Labor Relations Act (NLRA) was passed in 1935 and amended in 1947 by the Taft-Hartley Act. The first recognizable social media site appeared in 1997, so for over two decades, it has fallen on Administrative Judges, Appellate Courts, and the National Labor Relations Board (NLRB) to address employee use of social media within the context of the NLRA.)
Both Sides Now
One of the first things you’ll want keep in mind is that neither unionized nor non-union employers can write and implement social media policies that interfere with employee rights protected by the NLRA. Section 7 of the NLRA allows employees to engage in protected concerted activities (collective action) and to discuss working conditions, wages, management, and employment disputes, whether or not the workplace is unionized.
The real issue for most employers is that they want to discourage employees from posting on social media and sharing proprietary information. This includes any information that could jeopardize the organization’s brand or reputation in the marketplace. Similarly, social media by its nature conveys a certain degree of authority and companies don’t want employees making statements as if they are official company statements.
Your company needs team members to use social media as a communication channel for posting positive statements about the business. Naturally, you don’t want your employees complaining about your leaders, decisions made, or terms of employment. After all, online complaints and criticisms can hurt your ability to attract talent. You don’t want your employees making inaccurate or uncivil posts that reflect poorly on your company. Unfortunately, your rights as an employer to prevent these kinds of posts are limited.
Finding the Balance
With its various decisions, the NLRB is trying to find balance. Meanwhile, you want to develop a social media policy that maintains positive employee relations. The fact the NLRB has to keep addressing social media policies indicates the difficulty in finding that balance.
In December 2017, the NLRB established a new test to determine if a social media policy is facially neutral, meaning the policy doesn’t intentionally interfere with Section 7 rights of a particular group of people. The NLRB established the balancing test in what is commonly referred to as the Boeing Company case (case No. 19-CA-090932).
The NLRB created three categories for evaluating employer policies as “lawful” or “unlawful” within the context of the NLRA. The balancing act review process says the NLRB will assess an employee handbook rule to the extent the rule impacts employee rights and whether the employer has legitimate justification for the rule.
A Sample Social Media Policy Violation
Despite establishing three review categories, the NLRB was back to the drawing board in the Bemis Company case (case 18-CA-202617) – or they were at least in a position of revising what was already on the drawing board. In the case of Bemis Company, Inc. and Graphic Communications Conference of the International Brotherhood of Teamsters, Local 727-S, the NLRB overturned a Judge’s decision on the legality of a social media rule in August 2020. This case involved both Section 7 and 8 NLRA rights. (Section 8 gives employees the right to unionize and to join together to advance their interests as employees.)
Given you can’t have a social media rule that violates Section 7 or Section 8 rights, the two social media policy issues needing attention in the Bemis case were:
- Can employers require employees to be respectful and professional (civil) on social media no matter what is being posted? and
- Does the employer have to justify its social media policy, especially when it appears too restrictive?
The Bemis case supplemented the Boeing case by adding additional context to the Boeing NLRB decision. The employer had fired a union-supporting employee over aggressive statements made at work and posted online. The Judge ruled the social media policy violated Section 7 AND 8 of the NLRA.
This is how Bemis’ social media policy read:
“Employees are expected to be respectful and professional when using social media tools; with the rise of websites like Facebook, Myspace, and LinkedIn, how employees can communicate internally, and externally continues to evolve. We expect our employees to exercise judgment in their communications relating to Bemis so as to effectively safeguard the reputation and interests of Bemis.
- Communicate in a respectful and professional manner
- Avoid disclosing proprietary information; and
Each employee is responsible for respecting the rights of their coworkers and conducting themselves in a manner that does not harass, disrupt, or interfere with another person’s work performance or in a manner that does not create an intimidating, offensive, or hostile work environment.”
It sounds so reasonable. What could possibly be wrong with it? Asking employees to remain civil online and not harm the company’s reputation is reasonable, isn’t it? The Judge ruled the policy restrains the employee’s right to discuss working conditions. They ruled that the policy’s impact on Section 7 rights outweighed the employer’s interest in protecting its brand and its customers’ brands.
The Judge did not like the first paragraph because he believed it was too general. Therefore, the Judge took each paragraph and ruled on it instead of considering the whole social media policy and how a reasonable person would interpret the policy.
NLRB: Read the Social Media Policy as a Whole
The NLRB disagreed. The new rules that came out of the decision to reverse the Judge’s ruling included:
- The policy must be read as a whole and not interpreted as to intent paragraph by paragraph
- General expectations should be fully defined
- The policy cannot prohibit private conversations, but it can instruct employees to not negatively impact the employer’s public reputation
- The policy doesn’t necessarily need to be written as narrowly as possible (again, read the policy as a whole)
- The intent should reflect what a reasonable employee would interpret the intent being
The NLRB said you need to read the whole policy. The subsequent paragraphs fully defined general expectations outlined in the first paragraph. So the NLRB disagreed with the Judge.
Can’t and Can in Social Media Policies
Despite the varying interpretations, social media policies are converging at the NLRB. There are clearly some things you can and cannot do, based on the NLRA.
So, you can’t:
- Establish a social media policy without explaining why the rule is made
- Restrict employee Section 7 or 8 rights under the NLRA
- Interfere with an employee’s right to post privately
- Create a chilling effect on employee rights to discuss workplace conditions with other employees
- Restrict employees from referencing the employer’s name on social media postings
- Require employees to identify themselves by their real name when discussing their work, company, coworkers, or products or services in personal social media interactions.
But you can:
- Require employees to protect (but not forbid sharing) information like vendor lists or customer names and information
- State that there are designated employees who are authorized to speak for the company on social media
- Tell non-authorized employees they must make it clear they are not speaking for the company
- Restrict the use of the company name and logo in a social media account name or URL
- Require that personal opinions be identified as such
- Establish that employees should not post anything discriminatory, harassing, bullying, threatening, defamatory, or unlawful
- Restrict employees from posting content, photos, videos, or images that they don’t have the right to use
- Make it clear that concerted protected rights are excluded from the policy
One of the difficulties of reconciling social media policy statements within the context of the NLRA is that one word can lead to union complaints: using “should” versus “required.” A labor law attorney should review your specific policy for this reason. Employees have a right to discuss working conditions and wages and benefits with coworkers. Your social media policy simply cannot interfere with that right. Just one wrong word can cost a company thousands of dollars in attorney fees as it defends against an unfair labor practice charge (ULP).
Companies are continually finding themselves trying to undo damage to their reputation due to false or misleading employee social media posts.
Projections, Inc. provides resources and training tools to help organizations like yours stay union-free through employee engagement tools and leadership training. There is no way to predict how a future NLRB will decide on cases involving the wording in social media policies. Because of that, the message is: take care to learn what you don’t know and get professional advice! The team at Projections would love to be a resource for your social media, to help you stay protected and ensure your employees are protected as well.