HR Management & Compliance

Social Media: NLRB Eyeing Employer Policies

Employer workplace policies on social media are being scrutinized in more than 129 cases before the National Labor Relations Board (NLRB), says a study from the U.S. Chamber of Commerce.

This data wasn’t just handed to the Chamber. Rather, the group submitted a Freedom of Information Act request to the NLRB “seeking copies of all charges, complaints, and completed settlements related to social media” after an NLRB official both testified before Congress that the agency was investigating several social media charges against employers and issued a memorandum to its regional offices seeking any cases where employers had rules prohibiting or disciplining employees for using social media.

The Chamber “received a significant amount of information, including 117 charges, 7 complaints, and 5 settlement agreements.” A summary of this data is what makes up the Chamber study — which only focuses on issues raised through use of Facebook, Twitter and “similar channels”; not for example, cases involving employees posting information onto “more traditional” web pages.

The Chamber’s goal: For this information to help employers and legal counsel identify issues they should be aware of in struggling to apply labor law to employee use of social media.

Here’s a snapshot of some trends the Chamber found involving the two general categories under which most cases fall: (1) employer policies restricting employee use of social media that are alleged to be overbroad; and (2) employer discharge or discipline based on an employee’s comments posted through social media channels (generally, the issue here is whether the employees’ comments are protected activity in the NLRB’s view).

Allegedly Overbroad Employer Policies

  • The employer maintained overbroad rules prohibiting employees from engaging in concerted activities, including: not allowing employees to air grievances over social media, not allowing employees to post derogatory comments that would damage the company via social media, and requiring employees to observe rules regarding professional courtesy.
  • The employer maintained and enforced an overly broad policy prohibiting employees from making disparaging remarks about the company.
  • The employer orally promulgated an overbroad non-solicitation rule by telling employees they violated a code of ethics by using a company computer to post to a website.
  • The employer sent an e-mail expressing disappointment that employees took things to a newspaper rather than handling internally.

Termination Based on Alleged Protected Activity

  • Discharge for discussing terms and conditions of employment on Facebook.
  • Discharge for being on Facebook while at work.
  • Discharge of an employee based on “private Facebook e-mails” exchanged with friends and co-workers in which they complained about their working conditions and discussed a potential walkout in protest.
  • Discharge of an employee for posting information about a medical insurance issue on the personal Facebook page of a coworker.

Some cases explain how an employer learned of the conduct, said the Chamber, to include:

  • The employer engaged in unlawful surveillance by monitoring employee Facebook pages.
  • An employer learned of employees discussing not receiving paychecks on time when a local newspaper printed excerpts from a Facebook conversation.
  • A co-worker shared with management a Facebook conversation leading to the discharge of two employees.
  • An employer discharged an employee after comments he wrote on his Facebook page were printed out by a co-worker and given to a supervisor.

For our past coverage on social media, go here and here. For info on how to develop social media policies, see Thompson Publishing Group’s Think Before You Click: Strategies for Managing Social Media in the Workplace.

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