Should My Business Maintain a Social Media Policy?

In the age of ever expanding use of social media in the workplace, most employers rightfully believe that they should have a social media policy to regulate employees' use of such forms of communication and marketing in the workplace. However, many employers who have followed this commonsense approach to regulate social media in the workplace have found themselves being charged by the National Labor Relations Board ("NLRB") for violating the National Labor Relations Act ("NLRA"). As a result of the NLRB's aggressive stance toward employers' attempts to regulate social media in the workplace, many employers have decided that it is not worth the risk of trying to do so.

What Does the NLRB Have to Do With Social Media?

Many employers question why the NLRB has anything to do with regulating social media in the workplace. The NLRA, which applies to almost all union and non-union employees, prohibits employers from interfering with, restraining, or coercing employees engaging in protected concerted activity. We often think of such activities as including the right to self-organization, to form, join or assist labor organizations, and to bargain collectively through representatives of the employee's own choosing. Employers should keep in mind that employees also have the right to engage in other concerted activities such as the right to discuss wages, benefits, and terms and conditions of employment with coworkers. These are often the topics discussed via social media outlets. Employment policies that are deemed to be "overly-broad" or "ambiguous," including those pertaining to social media, have been found to restrict the employees' rights under the NLRA.

What has the NLRB Decided?

In a series of decisions, the NLRB has taken an aggressive stance toward social media regulation by employers. In many cases, social media policies have been found to be overly broad or ambiguous to the point where they are illegal. In some instances, the NLRB has overturned the discipline of an employee where the NLRB has found a social media policy to be overly broad or ambiguous. The decisions of the NLRB have found highly questioned actions by employees, such as substantial criticism of an employer and managers, and profanity to be legally protectable concerted activity. In other words, some of the NLRB decisions have upheld employee rants against their employer via social media. The remedy where an employer is found to have violated the NLRA typically includes removal of the discipline, reinstatement of the employee, and the payment of back pay to the employee for time lost, as well as the posting of an NLRB Notice acknowledging wrongdoing. These actions by the NLRB have left employers wondering whether it is possible to maintain a social media policy without risk of violating the law.

NLRB Guidance

In an attempt to defend and explain the controversial decisions by the NLRB, the Acting General Counsel of the NLRB issued a series of three Guidances in August 2011, January 2012, and May 2012 summarizing many of the NLRB cases analyzing social media policies. Although the Guidances help to explain the problems associated with the adoption of social media policies, it still was very difficult to determine what form of a social media policy can be legally maintained. Fortunately, in the May 2012 Guidance issued by the Acting General Counsel, employers were provided with some additional guidance, including a sample social media policy that the NLRB found to be legal. Therefore, employers who desire to adopt a social media policy as a guideline to create a policy that hopefully will be found to comply with the law. Although the sample policy may help employers to comply with the law, it does little to explain why the NLRB has been so aggressive toward employers.

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