Are you thinking about adopting a company-wide social media policy? Be careful what you prohibit. A client recently asked if the company could prohibit employees from discussing the company on social media. The client wanted to avoid negative publicity from disgruntled employees and thought a change to the employment manual would be helpful. The First Amendment guarantees freedom of speech, but only prevents government restrictions on speech, it does not relate to private actions. Consequently, clients often think that they are free to limit employees’ speech. But the National Labor Relations Board (“NLRB”) has held that restrictions that “chill” speech are unlawful (and actionable). Therefore, an employer must be careful when crafting restrictions to avoid unlawful restrictions.
Social Media Policies Cannot “Chill” Speech Protected by the National Labor Relations Act
The NLRB’s many decisions on this issue center around two sections of the National Labor Relations Act (“NLRA” the “Act”) (codified at 29 U.S.C. §§ 151-169). First, Section 7 of the Act (29 U.S.C. §§ 157) provides that employees “have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for … mutual aid or protection.” Second, Section 8 of the Act (29 U.S.C. §§ 158) prohibits any action by an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”
Over time, Section 8 has been applied to prohibit not only explicit restrictions on protected activities, but also to prohibit restrictions that (1) employees would reasonably construe to prohibit Section 7 activity; (2) that were promulgated in response to union activity; or (3) have been applied to restrict the exercise of Section 7 rights. Three D, LLC v. N.L.R.B., 629 Fed.Appx. 33, 38 (2nd Cir. 2015).
For employers, the difficulty comes in determining whether a proposed restriction violates the first clause—whether employees would reasonably construe the restriction to prohibit Section 7 activity. If a rule is ambiguous and does not clarify that it does not restrict Section 7 rights, then the rule is unlawful. Importantly, how employees interpret ambiguous restrictions is not dispositive. Instead, the NLRB considers only whether an employee could reasonably construe the restriction as prohibiting Section 7 activity. See Flex Frac Logistics, L.L.C. v. N.L.R.B., 746 F.3d 205, 209 (5th Cir. 2014); Three D, LLC v. N.L.R.B., 629 Fed.Appx. 33, 38 (2nd Cir. 2015).
Examples of Unlawful Restrictions
A few examples may be helpful.
Example 1: 1 A national retailer prohibited employees from releasing “confidential guest, team member or company information… .”
The NLRB held the rule was unlawful because an employee could interpret the restrictions as prohibiting the employee from discussing and disclosing information regarding conditions of employment—activities that are protected by Section 7. For example, the rule might prohibit discussing wages and conditions of employment with third parties or each other.
Example 2: An employer required:
“If during the course of your work you create, receive or become aware of personal information about [Employer’s] employees, contingent workers, customers, customers’ patients, providers, business partners or third parties, don’t disclose that information in any way via social media or other online activities. You may disclose personal information only to those authorized to receive it in accordance with [Employer’s] Privacy policies.”
The NLRB held that the rule was unlawful because, without clarification, employees may construe the restriction to include information about employee wages and their working conditions.
Example 3: The employer’s rule stated:
You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet. [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.
The NLRB held this was unlawful. An employer may suggest that employees try to work out concerns over working conditions through internal procedures. However, the NLRB held that by telling employees that they should use internal resources rather than airing their grievances online, the rule had the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.
Example 4: The employer prohibited:
“No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.”
The NLRB did not have any objection to the restriction. In this case, the NLRB concluded that because it only restricted communications attributable to the employer, it was not construed as limiting employees’ exercise of their Section 7 right to communicate about working conditions among themselves and with third parties.
What employee actions are out of bounds?
The employer’s hands are not completely tied when an employee takes to social media. An employee’s Section 7 rights must be balanced against an employer’s right to (1) prevent disparagement of the employer’s products or services and (2) protect the reputation of the business. See Valley Hosp. Med. Ctr., Inc., 351 NLRB 1250, 1252–53 (2007). Accordingly, an employee’s communications with the public may lose the protection of the Act if they are “sufficiently disloyal or defamatory.” See Three D, LLC v. N.L.R.B., 629 Fed.Appx. 33, 35 (2nd Cir. 2015); MasTec Advanced Technologies, 357 NLRB No. 17, 2011 WL 3017454, at *6 (2011).
An employee’s communication may be sufficiently disloyal to lose the protection of the Act if they amount to criticisms disconnected from any ongoing labor dispute. Id.; NLRB v. Elec. Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 476–77 (1953). Further, communications are not protected when they constitute “a sharp, public, disparaging attack upon the quality of the company’s product and its business policies, in a manner reasonably calculated to harm the company’s reputation and reduce its income.” Id. at 472.
Limiting employee communications come with risk and should only be undertaken with a thorough knowledge of the fats and an understanding of the potential communications which the employer seeks to avoid. We urge you to contract experienced counsel before imposing restrictions on your employees.
For a thorough discussion of these issues, or if you have other legal issues arising from employment, please contact Steve Runyan, Kevin Koons, or David Wright, or one of our other attorneys here to discuss your situation. It would be our pleasure to assist you.
1. Examples found in this article, and additional examples, are found in Memorandum OM 12-59, dated May 30, 2012, published by the NLRB’s Office of the General Counsel, Division of Operations-Management, and can be found here https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media