Over the past year, the National Labor Relations Board (NLRB) has reviewed a number of cases involving employer social media policies and/or employment terminations related to employee misconduct via a social media outlet. While the NLRB has decided a few of those cases in favor of the employer, the overall trend has not been positive for employers. Based on the NLRB's decisions to date, here are a few observations that can help employers stay out of the NLRB's cross-hairs.
- Employee termination decisions should be carefully considered to ensure the employee is not engaged in some sort of activity that is protected by the National Labor Relations Act (NLRA). The NLRA protects the rights of employees to engage in concerted activity that relates to the terms and conditions of employment. Given the NLRB's current expansive reading of these rights, if your employee is complaining on Facebook about something that happened at work, and the discussion involves co-workers, you may want to tread lightly. Considering the fine lines at play in this area, employers would be wise to consult with legal counsel before moving forward with an employment termination related to a social media post.
- If you have a social media policy, pull it out and think about it some more. Odds are that the current NLRB will find something wrong with it. Look carefully to make sure the policy is not overly broad. If the policy heavily restricts employee usage of social media and discourages employees from engaging in concerted activity, it probably is not going to pass muster with the NLRB. Another way of thinking about the issue is that if your policy could be read to prohibit a group of employees from discussing your employment policies via the social media platform, then it is likely to be found violative of the NRLA.
Stay tuned as the NLRB refines these general trends with future complaints/cases. For now, be cautious when dealing with employees engaging in social media communications, and review your existing policies to ensure they are not overly broad. As more decisions come down from the NLRB, it is becoming clear that employers should be as specific as possible in drafting restrictive social media policies.