DECEMBER 2019 | AROUND THE ABA

Does your social media policy violate labor law?

It’s no surprise that companies have developed social media policies to protect their interests in an age when scandalous information can be broadcast to the four corners of the Earth in the click of a mouse.

But a seasoned employment law consultant says that many of these policies violate labor law – specifically, the National Labor Relations Act.

Passed back in 1935 to protect work-related conversations between employees, the law is now being applied to communications on social media, says Chase Victorson, founder of Victorson Legal Professional Corporation, in his article for the latest issue of GP Solo Magazine.

Since 2010 when the National Labor Relations Board began receiving charges based on social media, the Office of General Counsel has issued three memos to ensure consistent enforcement.

Of relevance is Section 7 of the NLRA, which gives employees “the right to … engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (emphasis added).

“Protected concerted activities includes discussing terms and conditions of employment with other employees,” Victorson says.

As long as a social media post is not “malicious or reckless,” even criticism of an employer or its management may be protected when the communication is considered an attempt to garner support or rally others in the first step toward group action, says Victorson.

He cites the example of five employees who exchanged Facebook comments, alleging the poor work performance of a coworker. After the subject of the thread complained, the company fired the employees for harassment and bullying.  But the NLRB found the company in violation of the NLRA, saying its employees were engaged in protected concerted activity.

In this case and many others, it isn’t always clear whether posts are for “mutual aid and protection.”

So, your “policies should never be so broad as to prohibit discussions of wages or working conditions among employees,” Victorson advises.

Even if your social policy doesn’t explicitly restrict Section 7 activity, it can be unlawful if employees would reasonably believe it prohibits such interactions – or when combined with other separate policies, bars protected activity.

For instance, a rule prohibiting “statements that damage the company or any person’s reputation” or one that bars “inappropriate discussions” without examples or definition may be a violation because a reasonable person could construe the rule to prohibit discussion on how management treats employees, Victorson explains.

“To avoid the pitfalls, employers should carefully craft policies, regularly review handbooks for potential violations and encourage management training to help identify issues prior to employee discipline,” Victorson recommends.

For more advice on developing compliant policies, view the full article, “Can an Employer’s Social Media Policy Violate the National Labor Relations Act.”

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