© 2015 The Texas Lawbook.
By Kerry Curry
(Feb. 12) – The National Labor Relations Act has had plenty to say about companies’ social media policies, and it hasn’t been too complimentary.
From its rulings, it’s apparent the NLRB believes a significant number of social media policy restrictions are unlawful.
Over the summer, the NRLB ruled against five of six companies that had their social media policies challenged. More information on these rulings can be found in an article by Littler about the recent defeats.
An August NLRB ruling involving Triple Play Sports Bar and Grille in Watertown, Conn., also has attorneys talking.
Triple Play fired two employees after the bar’s owners saw an exchange on Facebook that was critical of the owners. The NLRB, in reversing the firings, said under Section 7 of the National Labor Relations Act that the Facebook “Like” button was protected and cited the bar’s social media policy as being too broad.
The firings commenced after a former employee of the bar accused the owners on Facebook of making a mistake in calculating the tax withholding of its employees. The post was made after several employees discovered they owed state income taxes. A current employee “liked” the Facebook post and another employee made a comment on the string: “I owe too. Such an asshole.”
The person who “liked” the comments was fired along with the employee who had called the boss an a-hole.
The NLRB affirmed the administrative law judge’s ruling that Section 7 protected the Facebook discussion because it related to terms of employment and was a concerted activity among employees preparing for a group action involving an upcoming staff meeting. While it said the employee’s “like” was protected, the board did not suggest that all “likes” are protected.
The employer contended the firings didn’t qualify for Section 7 protection because they were defamatory and disloyal. NLRB has ruled previously that mere disloyalty or actual malice may lose the act’s protections. The difference in this case is that the disloyalty was related to a labor dispute.
Littler attorneys also wrote about the implications of this case in a recent article:
www.littler.com/publication-press/publication/nlrbs-recent-triple-play-decision-tackles-two-critical-social-media-is
The NLRB also issued three detailed memos in 2011 and 2012 that provide guidance to companies on what violates the act and what doesn’t, supplying examples from past rulings.
Here’s a quick look at some of the red flags that the NLRB has cited in social media policies:
1. Prohibitions on releasing confidential information often are too broad.
2. Limits on inappropriate, disrespectful, and disparaging comments should be specific but are often too sweeping.
3. An employee’s comments on social media generally aren’t protected if they are gripes about the employer and aren’t made in any concerted activity with others.
4. Prohibitions against commenting on legal matters or disputes can be construed as attempts to limit workers from discussing potential claims or controlling potential union activities.
5. Disparagement of products or services are generally not protected under Section 7 of the National Labor Relations Act, but employers should tread carefully when trying to prohibit broader disparagement against the company that might fall into protected activity involving discussion of wages or working conditions.
6. Disclaimers don’t generally protect an employer from having their policy invalidated.
“My advice is to be very aware of the recent guidance from the NLRB,” said John Ansbach, general counsel at General Datatech in Dallas.
Ansbach recommends that general counsel and outside attorneys who are drafting social media policies — or updating existing policies — go back and read the NLRB reports.
“They may not help you get a bulletproof policy, but they will certainly help you get one that is very defensible and also very fair — balancing the interests of the company with the rights of their employees.”
Ansbach, who is preparing General Datatech’s first standalone social media policy, said he’s taking his own advice.
“After we have a draft, I’m comparing my language with the language that has been called out in those (NRLB) reports because I want to be sure that we are doing it right.”
Ansbach said he likes the idea of expressly affirming employees’ rights in a social media policy.
“From our standpoint, employees can always use social media to speak for themselves individually,” he said. “I think it’s a good idea in a policy to affirm that, to say, ‘employees have a right to speak for themselves’ and then also to affirm that ‘you always have the right to use social media to affirm your legal rights under the National Labor Relations Act.’ ”
For more information on what the NLRB has to say about social media policies, see:
www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media
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