The NLRA, which is enforced by the National Labor Relations Board (“NLRB”), guarantees employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under certain circumstances, the NLRA protects “concerted activities” of union and non-union employees. “Concerted activities” include general discussions of working conditions and pay practices. The NLRA protects these activities as long as they are not characterized as being reckless, violent, or malicious. Recently, the NLRB has issued decisions invalidating some employers’ social media policies because they are overbroad and are causing unreasonable restrictions on an employees’ right to engage in concerted activity.
For example, the NLRB invalidated an employer’s social media policy, in September 2012, by reasoning that: (i) the policy contained generalized limitations on what employees could post online; and (ii) such limitations were overbroad and would unreasonably restrict an employee’s right to engage in concerted activity. The applicable portion of the employer’s policy that the NLRB found to be invalid was: 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 Company’s] Employee Agreement, may be subject to discipline, up to and including termination of employment. In this decision, the NLRB suggested that the employer’s policy may have been saved by including a simple disclaimer that excluded protected conduct under the NLRA. Other helpful tips when drafting or updating your social media policy, to avoid the NLRB invalidating your social medial policy:
1. DO NOT include blanket prohibitions because they will likely be found unlawful;
2. DO be as specific and limiting as possible when banning communications—only regulating extreme statements; and
3. DO consult with a knowledgeable labor and employment attorney for review and revision of your social media policy.
The bottom line is that, if you are not cautious, you may ultimately be defending your Company in a claim before the NLRB if you terminate or take other adverse action against an employee for violating an invalid social media policy. In such a claim, the NLRB might reinstate and issue back pay for the employee. Due to these type of decisions, where the NLRB has dramatically increased its enforcement activity against non-union employers, the importance of an employer obtaining EPLI has never been greater.