National Labor Relations Board social media and blogging policies: Approach with caution

  • Joana Ampofo

    Joana Ampofo

 
By Joana Ampofo
Ice Miller
Updated 4/27/2021 8:51 AM

We live in a time when the power and influence of social media are at all-time highs.

Employees worldwide are using various social media platforms to voice their opinions; from the current TV series they're binging to the new restaurant they tried last night.

 

In addition, many employees are engaged in digital activism. Whether it's regarding high-profile cases of police brutality toward Black people, the rollout of COVID vaccines or working from home, there has been a rapid growth of online discussions linked to the employee-employer relationship.

In light of this, it is imperative that employers review their social media policies before enforcing or restricting employees' use of social media or disciplining employees for their use of social media. It is essential to confirm that such employer policies are consistent with the National Labor Relations Act ("NLRA"). Under the Trump administration, the National Labor Relations Board ("Board") certainly adopted an employer-friendly position regarding these issues.

However, under President Biden, there likely will be a change in direction concerning the Board's support of employer restrictions on social media use. Nonetheless, it's worthwhile to review recent Board decisions finding an employer's blogging policy lawful and ruling that an employer's social media policy, which prohibited employees from engaging in certain communications, did not violate employees' concerted activity rights.

Section 7 of the NLRA 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."

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Section 8(a) (1) of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." Notably, the NLRA protects the rights of both unionized and non-unionized private-sector employees. In traditional labor cases, the requirement has been construed broadly by federal courts and the Board.

Mutual aid or protection can include efforts by employees to improve the terms and conditions of their employment, even by using channels outside the employee-employer relationship. For example, complaints about working conditions to local, state, or federal governmental agencies or to the press can constitute concerted activity for a group's mutual aid or protection. Additionally, protected concerted activity may be triggered even if an employee "likes" a post.

Social media posts

Posts on social media must relate to working conditions to be protected under the NLRA. Section 7 does not protect individual action for personal gripes or complaints, even where other employees may benefit or other employees have an interest in the subject of the employee's complaint. In Medic Ambulance Service, Inc., the Board ruled that prohibiting inappropriate communications; disclosure of confidential information (such as employee compensation); use of the company's name or logo to endorse, promote or disparage people; or posts of photos of co-workers without consent, was lawful. The Board relied on Boeing1, balancing the nature and extent of the potential impact on NLRA rights with the legitimate justifications associated with the policy.

Employer blogging policies

In a recent Board decision David Saxe Productions, LLC, the Board reviewed among others, an employer's blogging policy. The blogging policy stated in relevant part that employee blogging is acceptable, "provided that it is done in a professional and responsible manner and does not otherwise violate [employer's] policy."

                                                                                                                                                                                                                       
 

The policy further provided that "[e]mployees shall not engage in any blogging that may harm or tarnish the image, reputation and/or goodwill of [the employer] and/or any of its employees. Employees are also prohibited from making any discriminatory, disparaging, defamatory, or harassing comments when blogging."

While the administrative law judge found that the policy violated Section 8(a) (1), the Board reversed. In reversing, the Board defended the employer's blogging policy under a Boeing Category 1(b) analysis, finding that the business justifications supporting the nondisparagement policy and preserving the employer's reputation and goodwill and the standing of its employees outweighed any potential adverse impact on employees' Section 7 rights.

Although the Board's current position on social media policies favors employers, that may not be so in the near future. Under President Biden, Board decisions will likely overturn major Trump-era policies, including restrictive social media policies. Thus, employers should exercise caution when drafting and enforcing such policies. When reviewing online posts to assess whether the post violates a social media policy consider the following:

• Whether the post(s) relates to any terms and conditions of employment;

• Whether co-workers commented or liked the employee's post(s);

• Whether the employee was seeking to encourage or prepare for group action; and

• Whether the employee's post(s) were an outgrowth of the employees' collective concerns

Ice Miller will continue to provide updates on any significant changes over the coming months. If you have any questions about this article, please feel free to contact Joana Ampofo or any other member of Ice Miller's Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

[1] Boeing Co., 365 N.L.R.B. No. 154 (2017).

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