A hot area in labor and employment law concerns employer social media rules and discipline of employees based on their use of social media during nonwork time. Thanks to the explosion in the use of i-Phone, i-Pad, blogs, tweets and twitters, online communications have replaced the water cooler as the forum for employee rants about work. The change in forum raises valid employer concerns about such venting, since anyone with a social media tool now has access to these unchecked rants, including competitors, current and potential customers, and current and potential employees. In addition to the change in forum and audience, employee discretion appears to be a thing of the past as employees, supervisors, and even business owners are now the subject of unbridled criticism by employees who assume that management is too inept to access social media.

While the National Labor Relations Board may have been a late arrival to the social media debate, it nevertheless has become a key player in this area. The Board’s prior focus on employee use of internet and intranet during work hours to solicit union support, has morphed into protection of employees engaged in “concerted, protected activity” which is broadly defined as the right of employees to discuss the terms and conditions of employment among themselves and non-employees. Controversial Acting General Counsel Lafe Solomon issued a memorandum on January 24, 2012 to provide guidance to employers, employees and unions regarding social media policies. This article will summarize the Board’s position in two general areas: employer social media policies and discipline of employees for alleged abuse of social media. Since the National Labor Relations Act applies to all employers, regardless of whether they are unionized, the Board’s position on both areas is of great importance.

Board’s View on Employer Social Media Policies

Employer social media policies implicate the so-called Section 7 rights of employees to organize, strike or, in general, to engage in protected, concerted activity. Overbroad policies which chill those rights may be struck down even if they have not been enforced and are not the basis for employee discipline. The Board’s view is that the continued existence of the policies alone violates the Act since employees may not engage in protected activity out of fear of violating the rules and incurring discipline.

In reviewing the Memorandum addressing social media policies, the common factors of interest to the Board appear to be the narrowness of the scope of the policy and the clarity of the definition of the proscribed conduct. Policies which broadly proscribe “insubordinate” comments, disclosure of “confidential” information or “inappropriate” activity are more likely to be struck down since the terms may be construed by employees to proscribe lawful employee discussions regarding wages and working conditions. Even a policy against “defamatory” web entries was struck down. Thus, an employer rule proscribing “[m]aking disparaging comments about the company through any media, including online blogs, and other electronic media or through the media” was deemed unlawful. Similarly, another policy proscribing employees from disclosing confidential and/or proprietary information about the company was deemed to violate the Act. In one case, a violation was found even though the employer had a savings clause expressly promising that the policy would not be used to interfere with “employee rights to self-organize, form, join, or assist labor organizations, … or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The Board determined that the provision was insufficient to address potential employee understandings regarding the scope of the social media policy.

The Board upheld narrowly drawn social media policies specifically prohibiting the use of social media to post or display comments about co-workers, supervisors or the company that are “vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” To the extent the social media policy is designed to protect confidential information, this must be underscored with examples. Thus, the Board upheld an employer proscription on the use or disclosure of confidential and/or proprietary information, which included “personal health information about customers or patients, and ‘embargoed information’ such as launch and release dates and pending reorganizations,” even though the policy contained some broad proscriptions.

Resulting Recommendations Regarding Social Media Policies.

Based on the Board memo, employers should craft social media policies as narrowly and as specifically as possible to address bona fide employer concerns. One such valid concern is employee harassment or discrimination of fellow employees since employers face liability if aware of such activity and they fail to act. The resulting social media policy, however, needs to be narrowly drawn to address this misconduct. Another valid employer concern is employee dissemination of confidential data and the resulting policy should define the type of confidential information of concern. The drafter needs to make sure that employees cannot misconstrue the policy to reach protected activity under the National Labor Relations Act.

Adverse Action Against Employees Based on “Inappropriate” Social Media Use.

The other area addressed by the Board’s Memorandum involves employer discipline and/or discharge of employees based on inappropriate social media use. The Board’s analysis does not necessarily turn on the lawfulness or unlawfulness of employer social media policies although in most cases, the two are linked. Instead, the Board’s analysis of disciplinary action primarily turns on whether the employee blog, tweet or email constitutes protected activity. If it is an “individual gripe” it is generally not protected. However, if the posting is couched in terms of general employee concerns and, especially if those concerns are met with social media responses from fellow employees, chances are good that the activity may be protected under the National Labor Relations Act, no matter how petty or coarse.

Protection of such employee media use does not necessarily turn on the identity of the recipient of the broadcast. NLRA protection applies not only to communications with employees but also to non-employees, including union business agents or other third parties. Protected activity also includes whistle blowing to the media regarding terms and conditions of employment. Thus, the fact that the postings are to the world does not deprive them of protection. What may deprive them of protection is the subject matter of the posting. While clever employees may phrase their individual grievances as universal complaints against the employer, many will not and thus will not be subject to the Act’s protection.

Recommendations Regarding Employer Disciplinary Actions.

When employee social media “gripes” are brought to the attention of management, the employer needs to first determine whether the venting relates to working conditions and, more importantly, whether the venting reflects individual interests or more general work issues shared by others. Even if the employer determines that the conduct may be protected, valid employer concerns regarding employee harassment and/or release of confidential data may trump this protected activity, especially if based on a narrowly written employer social media policy. Disparagement of the company, although embarrassing, appears not to be a compelling concern for the Board. As discussed above, resulting social media policies should therefore specifically and narrowly address both of these defensible employer concerns to ensure that both the policies and any resulting disciplinary action are upheld by the Board.