Social media can be many different things. For many millennials, it can be their primary source of communication with others in their hometown or across the world. For businesses, it can serve as an effective marketing tool, allowing for instant, widespread connections with customers. For some employers, however, social media can prove to be a litigation trap. As the law struggles to keep pace with the ever-changing landscape of today’s technology, uncertainty looms for how employers should treat their employees’ use of social media.
The past few years have seen an increasing number of employees bringing claims to the National Labor Relations Board claiming their employers have violated the National Labor Relations Act (NLRA). While it may be hard to imagine the drafters of the NLRA, which was enacted in 1935, could ever have predicted the emergence of social media, many of the core principles of the NLRA apply to social media. Section 7 of the NLRA protects an employee’s right to engage in concerted activities, which may include activities such as an employee initiating group action among other employees or an employee bringing complaints to the attention of management. Social media websites may serve as the forum for concerted activity as employees interact with each other and the public.
Employers can face potential NLRA violations for having overbroad policies that chill concerted activities or by taking adverse employment actions against employees based on their use of social media. In 2011 and 2012, the National Labor Relation Board’s Office of General Counsel distributed a serious of memoranda discussing various employment disputes based in social media. These memoranda can serve as a starting point for any in-house counsel or human resources manager to gain a better understanding of how to spot potential issues in handling social media policies and usage. Examining the memoranda, as well as other board decisions in the past few years, can provide some helpful guidance to companies wishing to draft effective social media policies.
Be Specific in What Employees Can and Cannot Post on Social Media
While it may seem appealing to simply tell employees that they cannot post anything about their employer online, such a broad policy will likely not hold up to the requirements of the NLRA. Instead, any social media policy should be designed to present employees with a simple and understandable explanation on what is appropriate and what is inappropriate to post on social media. For instance, instead of telling employees that they cannot be critical of the company, inform the employees that if they choose to post complaints or criticisms, they should avoid making disparaging, harassing, or discriminatory statements.
The standard that has been applied by the National Labor Relations Board in examining social media policies has been to determine whether a reasonable employee would interpret the policy as chilling concerted activity. It’s helpful to try and read the policy from employee’s perspective, taking into consideration what an employee may be thinking just before they post. If an employee reads the social media policy and becomes worried that a tweet about poor working conditions may subject the employee to discipline, then that policy is likely overbroad. Taking the time to think about what employees may potentially post can help in the drafting process to ensure that there is enough clarity to properly express the company’s position on how employees should use social media.
Difference Between a Disgruntled Employee and Concerted Activity
When it comes to deciding whether an employee should be disciplined for a social media post, counsel has to be keenly aware of what is protected as a concerted activity and what is the unprotected bemoaning of a disgruntled employee. In a 2015 decision against Pier Sixty LLC, the board found that even a profanity-laden post directed at a manager can be protected as concerted activity, as the post called fellow employees to action in an upcoming union election. However, in another instance, the board characterized a Facebook post consisting of an expletive and the name of the employer as an individual gripe not protected under the NLRA.
The line between social media posts that are protected and those that are not is far from clear. A recent example of the difficulty of drawing such a line can be seen in the board’s decision involving Chipotle Mexican Grill. An employee posted a series of tweets discussing various issues such as having to work on snowy days when public transit was down, low wages received by employees, and charging customers extra for guacamole. An administrative law judge initially found that these tweets were protected as concerted activities because the issues were not purely individual concerns. A three-member panel for the National Labor Relations Board reversed the administrative law judge’s rulings and findings, noting that the employee’s tweets were not protected concerted activities. By providing little discussion on the topic, the decision has not aided practitioners in determining when social media posts should be considered concerted activities.
While the effect social media has on employer-employee interactions is already an uncertain area of the law, potential changes to the National Labor Relations Board under the Trump administration may lead to differing interpretations of the NLRA. While it may be difficult for employers to keep up with the constant changes in technology and the law, prudent counsel should advise employers to implement simple, workable social media policies.
