Social media and employer liability under the NLRA
Social media has dramatically altered the way in which we all communicate, allowing us to be constantly connected to one another. At the same time, social media has created both novel and challenging legal issues for employers when they seek to regulate employees’ social media use. Employers—whether their workforce is unionized or not—must consider potential liability under the National Labor Relations Act (“Act”) when promulgating social media policies.
Among other things, Section 7 of the Act gives employees the right to engage in concerted activities for the purpose of collective bargaining or mutual aid and protection.1 Accordingly, non-unionized employees may be protected so long as their activity is “concerted” and for “mutual aid and protection.”2 That activity must relate to a term or condition of employment3 (i.e., wages, hours, or workplace conditions). Significantly, Section 8(a)(1) of the Act prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.4 Employers violate Section 8(a)(1) if the policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.”5 Policies which explicitly restrict Section 7 protected activities are clearly unlawful.6 But even facially neutral policies may contravene Section 8(a)(1) if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.7
Over the past year, the National Labor Relations Board (“Board”) has provided some guidance on when an employer’s social media policy violates Section 8(a)(1) of the Act. In Costco Wholesale Corp., the employer maintained the following rule in its handbook:
Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.8
The Board concluded that employees would reasonably construe this rule as one that prohibits Section 7 activity.9 The Board reasoned that the rule’s broad prohibition on defamatory statements clearly encompassed communications protesting the employer’s treatment of its employees.10 In other words, employees would reasonably construe the rule to mean that they were prohibited from making critical statements about the employer or its agents.11 Significantly, the rule did not present any “accompanying language” indicating that the rule did not apply to protected activity.12
Shortly after Costco Wholesale Corp., the Board issued its decision in Knauz BMW. In that case, the Board held unlawful a “courtesy” rule.13 The rule stated, “[e]veryone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the [employer].”14 The Board concluded that the rule violated the Act because employees would reasonably construe its broad prohibition on “discourteous” conduct as encompassing Section 7 activity – namely, employee statements objecting to working conditions.15 Moreover, employees would reasonably read the rule’s prohibition on “injurious language” as applying to statements of protest or criticism of the employer.16
To be sure, the District of Columbia Circuit Court of Appeals held that President Obama’s 2012 recess appointments to the Board were unlawful in Canning v. N.L.R.B.17 Accordingly, the Board’s decisions in Costco Wholesale Corp. and Knauz BMW are – at least in the District of Columbia Circuit – invalid. But management and their counsel should be aware of these cases regardless, since the Board will likely confirm these rulings once new appointments are made or will revisit these issues later.
The Acting General Counsel has also weighed in on the legality of social media policies under the Act. In a May 2012 Memorandum, the Acting General Counsel discussed several social media provisions that it found to be unlawful. Among those: (1) restrictions on releasing “confidential” information about guests, team members, or the company; (2) instructions that employees’ online posts be “completely accurate and not misleading”; (3) proscriptions on releasing information related to “the financial performance of the company”; and (4) instructions to not disclose “personal information” about other employees or customers.18 While these positions are not binding on the Board, they serve to illustrate the types of policies that will be highly scrutinized.
What types of employee speech on social media can employers safely regulate? Employers surely have legitimate interests in regulating employees’ social media use to the extent that the policy proscribes abusive and profane language, harassment, conduct that is injurious, offensive or coercive of coworkers or clients, inter alia. This much has been made clear by the Board.19
As social media continues to grow and operate in the shadows of the workplace, management and their counsel must be acutely aware of how the Board applies the Act to social media policies. The law affords the same protection to employees who discuss work-related issues online just as if those employees discussed such issues around the proverbial “water cooler.” Accordingly, what should management and their counsel know in light of the Board’s recent decisions? First, policies which explicitly restrict Section 7 protected activity are categorically invalid. Second, any social media policy should be narrowly tailored, avoiding overly broad or ambiguous language. Ambiguous rules will be construed against the employer.20 Third, employers should consider the inclusion of a “savings clause” when drafting social media policies. While such clauses will not invariably insulate a social media policy from invalidation, a well-tailored savings clause can save a social media policy that is otherwise unlawful. Finally, consult the Office of the General Counsel’s model social media policy, available at <.21 ■