In today's electronic world, employees' use of social media is widespread both inside and outside the workplace. Employers have new reasons to be cautious of restrictions they place on employees' use of social media outlets such as twitter, Facebook and LinkedIn.
The National Labor Relations Board (which has jurisdiction over both unionized AND non unionized employees) recently reviewed three employers' policies regarding employees' use of social media websites. In two of the cases, the NLRB found that the employer's policy was overbroad and could be considered to prohibit work-related complaints which are protected by law. A third case held in favor of the employer.
In a review of Costco's processes, the NLRB held that a handbook policy prohibiting employees from electronically posting messages that "damage the Company, defame any individual or damage any person's reputation" was invalid and overly broad. The policy, according to the NLRB, could be seen by employees as chilling their right to engage in protected, concerted activity. Such activity would include, for example, vocalizing work-related issues and discussing issues critical of the company. This, according to the NLRB, is a right that the National Labor Relations Act guarantees to both union and non-union workers.
In a case against EchoStar Corp., an administrative law judge found that the company's prohibition against disparaging or defamatory comments about the company, its employees, customers and its products was overreaching. The decision in this case seemed to hinge on the restriction on "disparagement" as an unlawful chill on the right to complain about work and working conditions. The judge in this case also found several other employer policies limiting employee actions as too broad and a restriction on employee rights.
The reasoning in both the recent decisions is based on a few General Counsel reports issued over the past two years. Those reports predicted a finding that an employer's social media policy should not unduly restrict employees' ability to legitimately criticize their employer.
In a third case, the NLRB found that not all employee social media posts are protected. Specifically, the NLRB upheld the decision of an administrative law judge in favor of a BMW dealership. In that case, the NLRB decided that the firing of a salesperson for photos and comments posted to his Facebook page did not violate federal law because the activity was not protected. The Facebook posting at issue was a photo of an accident in a neighboring Land Rover dealership. A salesperson's under-age son sat behind the wheel of the car, accidentally hit the gas, ran over his father's foot, and crashed the car into a wall. The salesman posted photos of the accident along with sarcastic commentary. The NLRB held that this behavior was not tied to the employee's terms and conditions of employment, so the firing based on the Facebook post was not concerted or protected activity.
While the NLRB decisions do not provide specific guidance for employers to follow when implementing a social media policy, they do indicate that the government will not look kindly on policies that broadly prohibit employees' speech or actions about workplace issues. Employers will want to be mindful when implementing such policies to protect the employer interests while not unduly restricting employees' right to use social media.
