Recent enforcement actions by the National Labor Relations Board (“NLRB”) suggest that the risks of implementing social networking policies or social media policies in certain circumstances may outweigh the benefits for some employers, and in any case should be drafted and implemented with care. Since 2010, the General Counsel of the NLRB has filed complaints against both union and non-union employers on the basis of social networking policies. The essence of these complaints was that the employers violated the National Labor Relations Act (“NLRA”) because the policies could be interpreted by employees as prohibiting them from discussing or complaining about their working conditions through social media communications with co-workers that the General Counsel believes are similar to 21st century “water-cooler” communications. Last year, for example, the General Counsel issued a complaint when an employer fired an employee for posting angry and off-color comments about her supervisor on her Facebook page, actions that violated the employer’s social media policy, which prohibited employees from “making disparaging, discriminatory, or defamatory comments” about the employer, an employee’s supervisor, co-worker or competitor. The General Counsel alleged that by making critical remarks about her supervisor to other employees, even through a Facebook page that could be accessed by non-employees, the employee was engaging in activities protected by the NLRA. In addition, the NLRB concluded that the social media policy itself violated the NLRA because its restrictions on employee blogging, internet posting, and communications purportedly interfered with and restrained employee rights under the NLRA.

Nutter Notes: The NLRA protects the rights of employees, whether unionized or not, to engage in protected “concerted activities” with fellow employees. As it relates to communication issues, the NLRA protects the right of employees to discuss their working conditions, wages and other terms of employment with one another. In the social media age, that right to communicate at times may conflict with employers’ efforts to regulate social media exchanges by their employees. While it is possible to create a social media policy that will not be found to violate the NLRA, banks should assess their need for social media policies, and whether general bank policies on confidential information, computer usage and harassment might sufficiently address relevant concerns. Banks that believe social media policies are necessary and worth the risk should review and revise their policies to ensure that they cannot be interpreted to limit the right of employees to communicate about the terms and conditions of their employment. In undertaking these assessments, banking institutions should consider including, among other provisions, a requirement that employees obtain authorization before posting any information in the employer’s name, and a prohibition on employees revealing the employer’s proprietary, confidential or privileged information on any public site.