Employers have been struggling with drafting and implementing social media policies that protect the employer’s business while at the same time not interfering with the rights of employees under Section 7 of the National Labor Relations Act (“NLRA”). Those rights include the right of employees to self-organization, to form or join a labor union, to bargain collectively with their employer, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Employees also have the right to refrain from any or all of such activities. (29 U.S.C. § 157).
Yesterday (May 30, 2012), the National Labor Relations Board’s Acting General Counsel (“AGC”) issued his third report on employer social media policies. In his report, the AGC reaffirmed his position that an employer violates the NLRA if it has a rule that “would reasonably tend to chill employees” in exercising their rights under the NLRA. A rule that explicitly restricts such rights is, of course, unlawful. A rule that does not explicitly restrict such rights is still unlawful if employees would reasonably construe it to prohibit their rights under the NLRA, the rule was promulgated in response to union activity, or the rule has been applied to restrict NLRA rights. (See page 3)
The AGC provided further thumbnail guidance for determining whether a social media policy is lawful or not. Specifically, the AGC stated:
“Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful. [Citation omitted.] In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.” (See page 3).
At the end of its report, the AGC included a template for a lawful social media policy.
Social media, and employers’ response to social media, is rapidly evolving and, as one might imagine, there are not clear lines. While the AGC has provided some guidance, employers would be well served to have their employment law attorney review their current social media policy.
