A recently complaint filed by a regional National Labor Relations Board office, alleging that an employee was unlawfully terminated under an overbroad social networking policy, should encourage companies to take a second look at the policies that govern employees’ internet communications. Although the NLRB’s press release made it appear that the employee was discharged solely due to negative comments posted on Facebook (criticizing her supervisor), the termination decision may actually have been based on multiple, serious issues.
As Facebook, LinkedIn, Twitter, and other social networks have become more popular, companies are being advised to design and implement policies that set standards for what employees can say about the organization on the Internet. In fact, the aforementioned policies must be carefully drafted so as to avoid specific violations of the National Labor Relations Act.
The NLRB’s action serves as a reminder that all employers must consider the labor-related consequences of restrictions on employees’ online activities. Attorneys are keeping a very close eye on this case and it is anticipated that businesses will adjust their policies accordingly. Until then, consulting with an experienced Internet law attorney to assist your company with updating its relevant social media policies (e.g., blogging, Internet posting, etc.) is critical, even if it is only to supplement those policies with a statement that the employer will not interpret or apply the policy in any manner that would violate the NLRA. This type of preemptive thinking can assist to mitigate legal risks. One caveat, when considering whether to enforce an existing policy in situations that involve potentially covered communications, proceed with extreme caution.
In addition, consulting with an experienced labor law attorney can assist you or your business to define situations where Facebook comments lose protected activity status under the NLRA, and just how far an employer may go in disciplining insubordinate, disloyal, or libelous communications. Although various “bright lines” remain with respect to proper grounds for discipline, such as revealing confidential information and/or trade secrets, social media policies should be scrutinized for language regarding “no discussion of wages,” “no negative impact on company,” and “no release of information about other employees,” all of which could be construed as involving protected activity under federal labor law, or “chilling” one’s right to free speech.
One thing is clear, companies must keep the NLRA in mind when drafting social media policies. It may be necessary to modify them, to include clear language that an employer will not interpret or apply the policies in any manner that would interfere with employee rights under the NLRA.
If you have social media policies, include safe harbor language. Depending upon the circumstances, there may be some additional risk in aggressive enforcement.