Small Business: Social Media Policies and the NLRA

August 31, 2011

By Philip I. Frankel, Small-Biz Focus, September/October 2011

While employers are embracing social media and establishing social media policies, they may not be aware that recent National Labor Relations Board (NLRB) advice memoranda may affect them, whether their employees are unionized or not. The NLRB has recently determined that policies prohibiting online comments disparaging the employer may unlawfully restrain employees from engaging in "concerted activity" protected by Section 7 of National Labor Relations Act (NLRA).

In 2010, the NLRB determined that an employee who criticized her supervisor for threatening to discipline her after she requested a union representative's presence on her Facebook® page had "engaged in concerted activities with other employees." A press release issued by the NLRB that accompanied its filing of the complaint stated that the employee's Facebook® post drew supportive responses from her co-workers, which resulted in the employee making additional online negative comments about her supervisor. In response, the employer terminated the employee for violating its social media policy. The NLRB's position was that this "interfered" with the employee's exercise of her NLRA rights.

The NLRB alleged that the employer's social media policy, which contained a provision that prohibited employees from making disparaging remarks about the employer or its supervisors, was unlawful. This broad interpretation created fear in all labor lawyers last year.

Recently, three cases have indicated that the NLRB will interpret "concerted activity" more narrowly than previously thought. In those cases, employees' negative comments posted on their Facebook® pages about their supervisors, wages, or responsibilities were considered valid grounds for termination. Unlike the 2010 case, none of the comments in these cases involved union activity. One comment was a bartender complaining about not receiving a raise and doing others' work without getting a share of their tips. In these cases, the terminations did not violate the NLRA because the comments either did not involve responses from other employees or did not involve terms and conditions of employment common to other employees, but instead were gripes individual to the complaining employee.

In the case of the bartender, the NLRB stated that the test for "concerted activity" protected by the NLRA is whether the activity is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." Based on that test, the employee in another case whose disparaging comment regarding his supervisor's "tyranny" did receive responses from his coworkers was not engaged in "concerted activity" because his comment was an "individual gripe," and therefore was only on his own behalf.

The 2010 case suggests the NLRB would find a social media policy unlawful if it restricts employees' rights to engage in "concerted activity." Employers therefore have three options: (1) not instituting a social media policy; (2) limiting the policy so it only prohibits unprotected activities, such as harassment of coworkers or discussion of proprietary information; or (3) prohibiting disparagement of the employer, but not disciplining or threatening to discipline employees when they do so. If an employer chooses the third option, they should also include language such as, "Nothing in this policy is intended to, or will be interpreted to, limit or interfere with your rights under Section 7 of the NLRA or any other applicable labor law or regulation." Employers should also consult with counsel when crafting or modifying their social media policies.