One of the hottest topics in labor and employment law today is how to deal with the effects of social media on the workplace. In the last year, the Acting General Counsel of the National Labor Relations Board (“NLRB”) has issued three reports regarding when employees’ social media use is legally protected. More broadly, the Acting General Counsel has addressed when social media policies may violate the National Labor Relations Act (“NLRA”). By way of background, even non-unionized employees are protected against adverse employment actions taken because they have engaged in protected, concerted activity. Activity is only concerted if it is either taken by multiple employees or by one employee on behalf of multiple employees. It is only protected when it relates to the conditions of employment.
While the Acting General Counsel has opined as to how he believed the NLRB would address companies social media policies, until recently, the NLRB had not addressed the issue directly. That changed when the NLRB handed down its decision in Costco Wholesale Corp., 358 NLRB No. 106, on September 7, 2012. In Costco, the NLRB held that Costco’s electronic posting rules, which apply to social media platforms, violated the NLRA. The policy prohibited employees from making statements that “damaged the Company . . . or damaged any person’s reputation.” As predicted by the Acting General Counsel’s reports, the NLRB found that the policy was too broad because it could be interpreted by employees to include protected, concerted activity in addition to unprotected activity. For example, complaining about a company’s unfair labor practices might “damage” the company but would be protected concerted activity apparently prohibited by the policy. The NLRB held that this chilling effect rendered the policy invalid.
As predicted by the Acting General Counsel, the NLRB did not rely upon an analysis specific to social media as a new method of communication. Rather, the NLRB treated social media in the same way as traditional methods of communication, such as employees simply meeting in person and discussing their employment. Many employers fear that the wide availability, inexpensive, and far-reaching characteristics of social media requires the NLRB to undertake a new analysis to develop social media specific rules. The NLRB has not taken that approach. This has raised employers anxiety that the ability of communications such as text-based social media and photographs and videos shared by social media have the ability to “go viral,” spreading rapidly and causing significant damage to the business. The NLRB’s decision makes it difficult to implement and enforce a social media policy that protects the company without violating the NLRA.
In his most recent report issued in June 2012, the Acting General Counsel provided a sample policy which he believed would pass muster. However, many employers feel that this sample policy is so watered down that it provides them no actual protection against damage to their businesses’ reputations flowing from employees’ public airing of personal complaints. It may be anticipated that the NLRB will continue to focus on this area, and it is important for employers to be aware of the risks associated with their social media policies.