Employer Social Media Policies: The Dangers of Too Much Or Not Enough

Employers wanting to prohibit damaging communications from being made about them by employees through blogging and rapidly evolving social media such as Facebook, Twitter, and LinkedIn should be aware of a recent National Labor Relations Board (NLRB) Complaint against American Medical Response of Connecticut, Inc. asserting that two of the more common employer restrictions on employee blogging and social media communications constitute unfair labor practices and are, therefore, unlawful. In its News Release, the NLRB pointed to two of the provisions in the company’s blogging and internet posting policies as being unlawful under Section 7 of the National Labor Relations Act (NLRA):

  • “one that prohibited employees from making disparaging remarks when discussing the company or supervisors;”
  • “and another that prohibited employees from depicting the company in any way over the internet without company permission.”

This position, which emanates from the NLRB’s Office of the General Counsel, seems to differ from a December 2009 Advisory Memorandum from the NLRB General Counsel’s Division of Advice that found lawful the social media policy of Sears, Roebuck and Co. prohibiting, among other things, “[d]isparagement of company’s . . . products, services, executive leadership, employees, strategy, and business products.”

Although a union precipitated the recent Complaint and the individual who was terminated for her Facebook postings was a union member, the NLRB could easily make the same assertions against employers when there is no union involvement, because Section 7 of the NLRA protects employees’ rights to engage, not only in union-related activity, but also in “other concerted activities for the purpose of . . . mutual aid or protection.” Anecdotally, it seems that far too many non-unionized employers have either been unaware or apt to downplay the significance of this aspect of the NLRA.

Perhaps the resolution of this case will clarify at least some of the many uncertainties regarding the practical effects of Section 7 and other statutes and legal doctrines on employers’ abilities to restrict the social-media activities of employees. Definitive clarity, however, is not likely anytime soon for reasons such as:

  • the rapidly changing nature of electronic communications (who foresaw phenomena like Facebook and Twitter not so long ago?);
  • what allowance, if any, will be made for the quantitative and qualitative differences between electronic posts that are viewed and forwarded almost instantaneously by numerous strangers — possibly millions — worldwide and traditional small-group activities such as face-to-face conversations and picketing; and
  • the effects of political changes on institutions such as the NLRB, within which there appear to be differences of opinion as illustrated by the contrast between the December 2009 Advisory Memorandum and recent Complaint.

This is not to say that the best course is for an employer to view this shifting landscape as an excuse to do nothing to deter individuals it is paying wages (presumably in exchange for expected positive contributions) from biting in a very damaging way the hand that feeds. To the contrary, these developments underscore the dangers not only of drafting and enforcing policies without sufficient attention to Section 7, but also of inaction.

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