The explosive growth in the use of social media over the past several years has enabled individuals and companies to communicate with enormous audiences including employees, supervisors, customers and clients at any time of day, on any day of the week.
With such a wide-open avenue of communication available to employees, many employers have found it necessary to implement social media policies in an attempt to protect trade secrets, to prevent employees from tarnishing an employer's brand or reputation with clients or customers, and to prevent unlawful harassment between co-workers. Recently, however, the National Labor Relations Board (NLRB) has began attacking such policies as infringing on employees' statutory rights.
Under Section 7 of the National Labor Relations Act (NLRA), employees have a statutory right to discuss wages, terms of employment and working conditions. Additionally, employees may take "concerted activity" for mutual aid and protection and to improve their working conditions. A company's social media policy would violate these rights if the policy "would reasonably tend to chill the employees in the exercise of their Section 7 rights," according to the Act. Quite often, an employer's social media policy is so broad that it prohibits an employee's exercise of his or her Section 7 rights.
For example, one employer implemented a policy prohibiting employees from "making disparaging comments about the company through any media, including online blogs." When an employee made derogatory comments on her Facebook wall regarding an internal job transfer that she perceived as unfair, she was fired for violating the employer's policy on disparaging comments. The NLRB ruled that the employer's non-disparagement policy violated the employee's Section 7 rights. The policy could be reasonably interpreted as prohibiting statements that the employer is, for example, not treating employees fairly or paying employees sufficiently. These statements would be protected speech under Section 7, and therefore any policy which prohibits such speech violates the NLRA.
The NLRB also found that an employer's policy prohibiting employees from using social media to engage in "unprofessional communication that could negatively impact the employer's reputation" was also in violation of Section 7, since this policy could reasonably be read to prohibit protected speech that, for example, criticized the company's employment practices.
In both cases, the NLRB pointed out that the employers' policies did not contain any limiting language excluding Section 7 protected activity from the policy's prohibitions. More specifically, Section 7 does not protect all employee speech, and a well-crafted social media policy can still prohibit unprotected speech that may damage an employer. For example, an employee's social media post expressing his or her own frustration or anger (and not voiced on behalf of co-workers) is not protected by Section 7 and may be prohibited by company policy.
The key to fashioning a social media policy that protects the employer without violating Section 7 is to make clear that the policy does not prohibit protected speech. The NLRB has already held that a simple "savings clause," such as a statement that says "this policy does not prohibit Section 7 protected communication and activity," is insufficient. Instead, the policy must focus narrowly on prohibiting unprotected speech, and must expressly exempt protected speech.
Finally, it would be wise for employers to keep their policies up to date with the NLRB's evolving definition of protected speech, so that the employer can avoid costly litigation, which may result from enforcing an invalid social media policy.
Dennis Lyons is an Associate in the Estate and Litigation Practice Groups. He can be reached at DLyons@vmmlegal.com or at 516-437-4385, ext. 128.