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Social Media and the NLRB
The Trump administration's appointees at the National Labor Relations Board (NLRB or Board), can end the Obama Board’s attempt to outlaw employers’ common-sense guidelines on employees’ social media communications.
Over the past eight years, employee use of social media, like Facebook and Twitter, was a hot topic for Obama’s NLRB. The agency found numerous common-sense employer guidelines on employees’ use of social media to discuss their workplace to be illegal and determined that employee use of social media can be protected activity under the National Labor Relations Act.
As a result, many facially neutral, broadly-worded, and common-sense communications policies were held to unlawfully restrain employees’ “protected” activity. For example, the Obama NLRB struck down social media policies that:
- Prohibited “disrespectful conduct,” “inappropriate conversations,” “unprofessional communications,” or “defamatory comments.”
- Prohibited the disclosure of confidential, sensitive or non-public information about the company to anyone outside the company without prior approval.
- Prohibited employees from engaging in unprofessional communication that could negatively impact the employer’s reputation or interfere with its mission.
- Prohibited posts that are discriminatory, defamatory or harassing about specific employees.
- Required employee comments to be “honest, professional and appropriate.”
- Required postings to include a disclaimer that the opinions expressed are the employee’s alone and not that of the employer’s.
- Required approval before any employees are allowed to identify their employer or use their trademarks or service marks.
The NLRB placed a heavy focus on whether employees were social media “friends” with co-workers, and whether co-workers responded to an employee’s posts about the company. Merely using Facebook’s “like” feature was enough for the Board to determine that concerted activity was taking place. Even if no other workers responded, the NLRB determined that it may protect an employee’s posting as an attempt to initiate group action.
Employers are concerned about how the Obama NLRB expanded its definition of “concerted activity” and its heightened scrutiny of seemingly standard, unobjectionable language that employers have used in their personnel policies for years. While this is still an emerging area of law and there is no bright line test, one thing is for certain: the NLRB made life more difficult for employers on social media policies.
The Board should:
- Revisit how the agency treats social media policies, and what constitutes “concerted activity” on social media platforms like Facebook, Twitter, etc.
- Affirm employers’ social media policies that promote courtesy, prohibit discriminatory and harassing posts, keep confidential information private, and protect a company’s brand.