Walking the Social Media Policy Tightrope: How Employers CAN Comply with Tough NLRB Scrutiny

January 24, 2013

By: Melody B. Lynch and W. Drew Sorrell

In the past few days, the media has exploded with stories about employers regulating social media.  The discussion stems from an article in the New York Times covering, frankly, old news.  The National Labor Relations Board (NLRB) is an independent government agency that acts through the National Labor Relations Act (NLRA) to, among other things, limit employers control over employees’ use of social media to the extent such use relates to wages and/or working conditions.  The NLRB has taken this position since at least August 2011 and continues to enforce its position through new decisions and additional guidance documents.

Social media has a huge impact on today’s employers.  Facebook now has over 1 billion users each month – chances are that at least a portion of your workforce is logging into Facebook or another social media site either on or off the clock.  Regardless of where the connection is occurring, employers are struggling to manage how their employees express themselves on their personal social media pages.  Until recently, the wisdom in the human resources arena was to craft a social media policy which prohibited employees from disparaging the company or its employees online.   However, beginning in August 2011, the NLRB began issuing a series of reports on employer social media policies and started cracking down on private employers stifling so-called protected speech (in a labor context).

The NLRA, which applies to virtually every private employer, provides all employees with a right to discuss wages and working conditions without the fear of retaliation by the employer.  Thus, what was once a discussion that occurred around the water cooler has now shifted, and employees are expressing their pleasure or displeasure with their working conditions via social media.  Recent NLRB decisions and guidance reports provide insight for employers and human resource managers. 

In a decision last month, the NLRB concluded that an employee of Hispanics United of Buffalo (Hispanics United) had been wrongfully discharged after lodging the following complaint on Facebook: “Lydia Cruz, a coworker feels that we don’t help our clients enough at Hispanics United.  I about had it!  My fellow coworkers how do u feel?”  The employee and the four co-workers who responded to the Facebook post were terminated.  In ruling for the employees, the NLRB held that the employees engaged in protected concerted activity.

The employer in Hispanics United could not use its social media policy to preclude the employees from discussing working conditions online.  Nevertheless, social media policies can still be an effective tool for employers as long as they comply with the NLRA.  In a previous decision, the NLRB blessed Walmart’s revised social media policy which prohibits “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”  Walmart’s policy also provides detailed examples of inappropriate conduct which appeased the watchful eyes of the NLRB.

Employers should review their social media policies and revise them as necessary to ensure that they comply with the NLRA.  The firm's employment lawyers can craft social media policies which meet your company’s goals while complying with the NLRA.