Why Limiting Language May Not Be Sufficient To Make a Social Media Policy Lawful Under the NLRA

On January 24, 2012, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued a new report concerning social media cases.  The report discusses fourteen cases relating to social media issues.  Many of the cases include discussion regarding whether an employer’s social media policy is overbroad and, therefore, illegal under the National Labor Relations Act (NLRA).

Section 7 of the NLRA protects employees’ rights to engage in form, join, or assist labor unions as well as to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  See 29 U.S.C. § 157.  Social media policies may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”  For this reason, it is advisable for employers to include limiting language in their social media policies to make clear that the policy does not prohibit the exercise of Section 7 rights.  However, limiting language may not be sufficient in itself to make a social media policy lawful under the NLRA.

In the NLRB’s new report, one of the cases discussed involved an employer’s social media policy that included limiting language.  The policy stated that, “in external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.”  The policy did not define or provide any examples of what constituted “appropriate” or “inappropriate” discussion of the terms and conditions of employment.  The policy also included limiting language that stated that “the policy would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

The NLRB determined that the limiting language in the policy was not sufficient to cure the ambiguities regarding what constituted “appropriate” or “inappropriate” discussions about the terms and conditions of employment.  The NLRB determined that an employee could reasonably interpret the policy as prohibiting protected Section 7 activities despite the limiting language.  Accordingly, the NLRB held that the policy was unlawful.

Takeaway:  To comply with the NLRA, it remains a good idea for employers to include limiting language in their social media policies to make clear that Section 7 activities are not prohibited.  However, limiting language alone may not be sufficient to make a social media policy lawful if other aspects of the policy could reasonably be interpreted as restricting the exercise of Section 7 rights.  When employers draft social media policies, they should think critically about all aspects of the policy in addition to including limiting language.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on February 6, 2012, in Technology and the Workplace, Unions and Labor Law and tagged . Bookmark the permalink. Leave a comment.

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