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Is Your Social Media Policy Illegal? What the NLRB Has to Say

The social revolution is changing the business world completely, but there is still a great deal of grey area about what employers can and can't do.  How do you manage what employees post to personal pages on sites like Facebook and Twitter?  Can your policies control what your de factodislike “brand ambassadors” can say, or is this a violation of their rights to free speech?  If employees post negative content about the company, can you ask them to take it down? 

There’s not a lot of legislation or legal precedent yet to answer these questions.  In an attempt to fill this void, on May 30th the NLRB issued new guidance as to what employers’ social media policies can and can’t contain.

Why You Need a Social Media Policy In the First Place

Employees are a firsthand reference for people to learn about your company. What they say on social networks directly reflects back on your organization, and it has an equal if not greater impact on the market’s perceptions of you.

Positive comments about your company are free “advertising”, but what happens if the posts turn sour?  If you have a disgruntled employee that voices their dissatisfaction on the internet, that contributes to your overall image and reputation.

To attempt to control this, employers are creating social media policies outlining what can and can’t be shared – but according to the NLRB, many of these policies may contain provisions that are illegal.

Social Media Policies the NLRB Takes Issue With

The NLRB is primarily concerned with social media policies as they relate to employee rights to free speech and the right to organize as outlined in the National Labor Relations Act. 

Social media to some extent has become the new office watercooler, where employees share their thoughts and opinions at work.  If an employer policy bans this kind of dialogue or any protected organizing activity, the NLRB considers this illegal. 

Of course, the final word on the legality of the NLRB guidelines will only come when the recommendations are tested in court – but unless you’re willing to be the defendant in such a case, it’s best to heed their advice for the time being.

The Most Common Problem: Overly Broad Policy Terms

Even if an employer doesn’t place an outright ban protected activity, overly broad or general wording in policies can be an issue.  If employees are given room to interpret social media policies, they may reasonably get the wrong impression as to what is intended by certain provisions. 

According to the NLRB, overly broad policy wording is a problem if:

1)   Employees would reasonably construe the language to prohibit Section 7 [of the NLRA] activity

2)   The rule was created in response to union activity

3)   The rule has been applied in a way that restricts Section 7 rights

Any policy that “would reasonably tend to chill employees in the exercise of their Section 7 rights” may also be illegal.  The NLRB reviewed a number of employer policies and found this to be a problem with many of them. 

Other Technology Issues With Today’s Plugged-In Workplace

As technology continues to change the way we live and work, new issues are going to constantly spring up for employers.  The NLRA, the Fair Labor Standards Act, and other major employment laws just weren’t designed for today’s workplace and haven’t kept up with the rapid pace of change. 


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Topics: Construction Transportation Manufacturing HR / Employee Benefits