National Labor Relations Board Social Media and Blogging Policies: A Cautious Approach
We live in a time when the power and influence of social media is at unprecedented levels. Employees around the world use various social media platforms to voice their opinions; from the current TV series, they go to the new restaurant they tried last night. Additionally, many employees are engaged in digital activism. From high-profile cases of police brutality against black people, to the rollout of COVID vaccines, to working from home, there has been a rapid growth in online discussions related to the employee-employer relationship. In light of this, it is imperative that employers review their social media policies before imposing or restricting employees’ use of social media or disciplining employees for their use of social media. It is essential to confirm that these employer policies comply with the National Labor Relations Act (“NLRA”). Under the Trump administration, the National Labor Relations Board (“Board”) has certainly taken a pro-employer stance on these issues. However, under President Biden, there will likely be a change in direction regarding the Council’s support for employer restrictions on social media use. Nonetheless, it is worth reviewing recent Commission decisions that found an employer’s blogging policy to be legal and an employer’s social media policy, which prohibited employees from engaging in certain communications, did not violate employees’ concerted activity rights.
Section 7 of the NLRA guarantees employees “the right to self-organize; to form, join or assist trade unions; to bargain collectively through representatives of their choice, and participate in other concerted activities for the purposes of collective bargaining or other support or protection.Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to “interfere with, restrain or coerce employees in exercising their rights under section 8(a)(1). 7”. In particular, the NLRA protects the rights of union and non-union employees in the private sector.
In traditional labor law cases, the requirement has been interpreted broadly by federal courts and the Commission. Mutual aid or mutual protection may include efforts by employees to improve the terms of their employment, even through channels outside the employee-employer relationship. For example, complaints about working conditions to local, state, or federal government agencies or the press may constitute a concerted mutual aid or protection activity by a group. Additionally, protected concerted activity can be triggered even if an employee “likes” a post.
Social media posts
Social media posts must relate to working conditions to be protected by the NLRA. Section 7 does not protect individual actions in personal complaints or complaints, even where other employees may benefit or other employees have an interest in the subject matter of the employee’s complaint. In Medic Ambulance Service, Inc., the Board ruled that the ban on inappropriate communications; disclosure of confidential information (such as employee compensation); using the company name or logo to endorse, promote, or disparage people; or publication of photos of colleagues without their consent, was lawful. The Council relied on Boeing, balancing the nature and extent of the potential impact on the rights of the NLRA with the legitimate justifications associated with the policy.
Employer Blogging Policies
In a recent Council decision David Saxe Productions, LLC, the Commission examined, among other things, an employer’s blogging policy. The blogging policy stated in relevant part that employee blogging was acceptable, “provided it is done in a professional and responsible manner and does not otherwise violate [employer’s] policy.” The policy further provided that “[e]employees should not engage.
in any blog that may harm or tarnish the image, reputation and/or clientele of [the employer] and/or one of its employees. Employees are also prohibited from making discriminatory, disparaging, defamatory or harassing comments when blogging.
Although the administrative law judge found that the policy violated section 8(a)(1), the Commission backtracked. In reversing, the Commission defended the employer’s blogging policy under a Boeing Category 1(b) analysis, concluding that the business justifications supporting the non-disparagement policy and preserving the reputation and goodwill of the employer and the reputation of its employees outweighed any potential adverse impact on the rights of employed under section 7.
Although the Council’s current position on social media policies favors employers, this may not be the case in the near future. Under President Biden, board decisions will likely overturn key Trump-era policies, including restrictive social media policies. Thus, employers should exercise caution when drafting and applying such policies. When reviewing posts online to assess whether the post violates a social media policy, consider the following:
- Whether the position(s) is (are) linked to terms and conditions of employment;
- Whether colleagues have commented on or liked the employee’s post(s);
- If the employee sought to encourage or prepare a class action; and
- Whether the employee’s position(s) were a consequence of collective employee concerns
Ice Miller will continue to provide updates on any significant changes over the coming months. If you have any questions about this article, please do not hesitate to contact Joana Ampofo or any other member of Ice Miller’s Labor, Employment and Immigration group.
This publication is intended for general informational purposes only and does not constitute and is not intended to constitute legal advice. The reader should consult legal counsel to determine how any laws or decisions discussed herein apply to the reader’s specific circumstances.