Facing the Book – Social Media Policies and Unfair Labor Practices

Unfair Labor Practices

With the growing number of social media driven complaints received by the National Labor Relations Board (NLRB), it is more important than ever for employers to have updated and reviewed versions of employee handbooks and policies to avoid facing charges of unfair labor practices.

Sasha Ellis, an attorney from Ogletree Deakins, stopped by the Lovitt & Touché Learning Academy to share information on how the NLRB reads employer policies and best practices to avoid unfair labor practice litigation. Ellis has experience in defending employers in federal and state court, as well as representing employers in all aspects of labor relations.

Protected Concerted Activity and Unfair Labor Practices

In investigations of unfair labor practices, the NLRB determines if an employee’s rights were violated based on whether the act in question was a Protected Concerted Activity (PCA). A PCA is like a 1st Amendment “Free Speech” right for employees regarding work. According to the NLRB website, a PCA defined as, “two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others”.

The rise of social media has created many gray areas when it comes to PCA. For example, an employee posting negative content about their employer’s brand or lashing out against a manager on social media can be considered a PCA while the same employee posting material that may be deemed threatening could lose its protected status.

When employers are making policies for social media they need to consider Section 7 of the National Labor Relations Act (NLRA) which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

There are four ways employer policies can violate the NLRA:

  1. Expressly ban PCA.
  2. If the policy was promulgated to union or other Section 7 activity.
  3. If the policy was actually applied to restrict the exercise of Section 7 rights.
  4. If employees would reasonably construe the policy’s language to prohibit Section 7 activity.

Lawful vs. Unlawful

Ellis provided real-life examples from employee handbooks and quizzed those in attendance of which policies were “Lawful or Unlawful”.

An example of an unlawful social media policy that came as a surprise to many was the following: “It is important that employees practice caution and discretion when posting content on social media that could affect the Employer’s business operation or reputation”. This policy was classified as unlawful because it prohibits employees from criticizing their employer in public.

An example of a lawful social media policy was “Do not make negative comments about our customers in any social media”. This policy is considered lawful because it was not overly broad and specifically refers to just customers.

The handling of a NLRB complaint can be a complex process. What’s an employer to do? The best approach an employer can take is contact your attorney for aid with response to the complaint as well as taking the right steps for your business.

Special thanks to Sasha Ellis for taking the time to share this valuable information about the NLRB and how it affects employers. If you have any questions, please contact your Lovitt & Touché representative.