The National Labor Relations Board (“NLRB”) is often erroneously regarded as an agency that has no role except with respect to unionized workplaces. Employers and employees alike need to understand that the NLRB’s mandate is much broader, extending to protections of even non-union workers when they are discussing the terms and conditions of their employment. Non-union employers are sometimes caught off guard when the NLRB comes calling to investigate a complaint that an employee was punished for discussing his or her terms and conditions of employment with co-workers, in violation of Section 7 of the National Labor Relations Act.
As with all other subjects of conversation, the leading place where employees discuss the terms and conditions of their employment these days is online, using social media such as Facebook, Linked In, and Twitter. There have been so many complaints filed with the NLRB regarding punishment for statements posted by employees on social media that the NLRB has started issuing guidance to assist employers and employees in understanding what can and cannot be said using social media.
The NLRB has issued several summaries of investigations in recent months, and just a few days ago it issued what was described as a comprehensive social media policy guidance, including recommended language and examples of acceptable and unacceptable restrictions on employee use of social media. Unfortunately, the NLRB’s recent guidance is anything but clear.
This article represents an attempt to summarize the NLRB’s current guidance. The guidance could change at any time, and the specific circumstances of an employee’s employment could have a bearing on the reasonableness of even the language recommended by the NLRB. But here are some suggestions.
- An employee’s disclosure of information that is subject to protection under trade secret law, copyright law, or the attorney client privilege can be prohibited by the employer;
- Employees can be prohibited from attributing their personal comments to their employer;
- Employees can be admonished to use their best judgment in deciding what to post;
- Employees can be admonished to always be fair and courteous to co-workers, customers, and others;
- Employees can be encouraged to always be truthful;
- Employees can be reminded that the employer’s anti-harassment policy applies online just as it applies to face to face communications with co-workers, and that posts that would constitute harassment of a co-worker if said in person will still be considered harassment if posted online;
- Under no circumstances can the employee (even a non-union employee) be prohibited from discussing the terms and conditions of his/her employment, including but not limited to compensation; and
- Employers may not be protected where the social media policy contains language that offends the NLRB, even where the employer has included in the social media policy language to the effect that the policy is not intended to violate the employee’s rights under Section 7 of the National Labor Relations Act.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific situation.
