ARE EMPLOYER’S SOCIAL MEDIA POLICIES OVERLY RESTRICTIVE?

Social media is no longer the “next big thing” or something just for those on the cutting edge of technology. For many people it is simply the easiest way to communicate with friends, family, colleagues, or just like minded individuals. Importantly, it is also a means for employers to communicate with each other and others regarding their working conditions. Section seven of the National Labor Relations Act (NLSA) outlines employee’s rights to engage in concerted efforts to protect their rights as employees. To allow for this, workers must be able to discuss their working conditions.

With the growth of social media, many employers have enacted strict policies seeking to control their employee’s use of these communication platforms. These policies often contain broad provision that would restrict or at least chill an employee’s ability to discuss the company’s labor policies or treatment of employees. This week the National Labor Relations Board (NLRB) issued a new report identifying a variety of policies that were unlawful because they would restrict or chill an employee’s rights.

Among the real life examples of social media policies cited by the NLRB as being unlawful was this passage, requiring that social media communication are “completely accurate and not misleading and that they do not reveal non-public information on any public site.” The NLRB found that this unlawful because, “the term ‘completely accurate and not misleading’ is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”

The NLRB did also provide examples of policies that it determined complied with current law, such as this, “you are solely responsible for what you post online.”

When workers are prohibited from discussing the fact that they are being mistreated or are being required to work in dangerous conditions, it will be exceedingly difficult for them to address and correct these conditions.

Source: NLRB, “Report of the Acting General Counsel Concerning Social Media Cases,” May 30, 2012.