An increasing concern for employers is their employees’ use of social media. For some time now, employers have been devoting resources to monitoring their employees on social media. I’m not talking about someone taking a couple of minutes to check her Facebook page during the workday. This is about employers monitoring the use of social media in general, outside the workplace.
In response to this trend, the National Labor Relations Board has gotten involved. A common misperception is that the NLRB only regulates employers with unionized workforces. In fact, the NLRB has authority to regulate most private employers, even if they don’t have a unionized workforce. The NLRB has been weighing in on employers’ social media policies when it believes that those policies infringe upon employees’ rights to engage in “concerted activities” for “mutual aid or protection.”
In particular, the NLRB has ruled that some very common employment policies violate the National Labor Relations Act:
- Prohibitions against sharing confidential information on social media, when the employer’s definition of “confidential information” is overly broad;
- Prohibiting employees from speaking to the media, or commenting on social media, about the employer or co-workers;
- Restricting employees from posting “inappropriate,” “disparaging,” or “negative” statements about the employer or co-workers;
- Prohibitions against employees using the company logo;
- Requiring employees to include a disclaimer stating that their comments do not reflect the views of the employer, when posting on social media.
The reason that the NLRB claims these prohibitions violate the NLRA is because they can be interpreted as prohibiting employees from discussing the terms and conditions of employment. For example, suppose an employer considers wages to be confidential information, and prohibits employees from posting confidential information on social media. The NLRA protects the rights of employees to discuss their wages with their co-workers, so the prohibition and the definition of “confidential information” could be a violation of the NLRA.
Another example is where an employer prohibits employees from making “negative” comments about the employer. The NLRA protects the rights of employees to complain about workplace policies, so a prohibition on making negative comments could be viewed as a violation.
In light of the NLRB’s greater involvement in reviewing these social media policies, it is a good idea for employers to review their employee handbooks and other workplace policies.
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