Lawful Social Media Policies vs. Unlawful Social Media Policies – The NLRB Weighs In (And Yes, Even the NLRB Tweets!)

Contributed by Carly Zuba

In today’s technologically savvy age, more and more disgruntled employees are turning to Twitter, Facebook, blogs, and other social media outlets to air their grievances about their employers.  The National Labor Relations Board (NLRB) has taken note and recently issued a report to provide guidance to employers, employees, and unions regarding social media policies.  The Board, which currently boasts an impressive 3,092 followers on Twitter, even tweeted about the report on January 25, 2012.

The report summarizes 14 recent social media cases, with half of the cases touching on questions concerning employer social media policies.  Not surprisingly, most of the social media policies that the NLRB reviewed were found to be overly broad.  Because of this, it is crucial for employers to ensure that their social media policies are not so broad that they chill an employee’s right to engage in protected activity. 

In the eyes of the NLRB, the following are examples of unlawful social media policy:

  • Employees may not post “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.”
  • Employees may not post “disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
  • “Employees should generally avoid identifying themselves as the employer’s employees unless discussing terms and conditions of employment in an appropriate manner.”

Why did the Board decide these policies were unlawful?  Because employees have the right to engage in protected concerted complaints regarding employer policies and the treatment of employees, even if that speech is defamatory, and the Board found the above policies to stifle such protected concerted activity.

So, what type of language does the NLRB consider lawful?  The NLRB upheld the following social media policy:

  • Employees are prohibited from using social media to “post or display comments about coworkers or supervisors or the Employer 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.”

The above policy was found to be lawful because the Board felt it would not be reasonably understood to restrict legal concerted activity.

While the NLRB’s report teaches us that employers should not be implementing overly broad social media policies, it is always good practice for employers to have their social media policies reviewed by an experienced labor and employment attorney.