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Union and Non-Union Employers Take Note: The NLRB Has Your Social Media Policy In Its Crosshairs

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November 11, 2010

By Amy Moor Gaylord

Recently, in what has been described as a ground-breaking case, the Hartford Regional Office of the National Labor Relations Board issued an unfair labor practice complaint against a Connecticut employer because, according to the Board, the company maintains an overly broad social media policy that interferes with employees’ rights guaranteed by Section 7 of the National Labor Relations Act. 

Section 7 of Act gives employees the right to form, join or assist a union, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.  The Board and courts have broadly interpreted the phrase “for other mutual aid or protection” to include seemingly individual employee gripes when they could potentially benefit other workers.  Until now, though, these conversations and comments occurred primarily in person and face-to-face.  The recent complaint signals that the Board clearly believes that the protections in the Act extend to the same types of activity, even when they occur online.  Social media like Facebook, Twitter, e-mail and text messages have become today’s water cooler, lunchroom and bulletin board.

The social media policy that led to the Region’s complaint prohibited employees “from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers or competitors.”  An employee posted comments critical of her supervisor online on her Facebook page, which drew supportive comments (also on Facebook) from other workers.  The company fired the employee for violating its social media policy.  The employee filed an unfair labor practice and after an investigation, the Region issued its complaint.

The Board issued a press release regarding the Region’s complaint, clearly putting employers on notice that it will closely examine social media policies (and other policies) that discourage employees from workplace discussions or communicating their views on unionization, whether online or in person.  And while the Region’s complaint does not technically establish any new law just yet, employers should nevertheless use this opportunity to review their own social media policies before a challenge arises.  Policies that do not squarely explain the company’s aim not to prohibit employee complaints or comments about their terms and conditions of employment, or their views about unionization, will likely fail under scrutiny—regardless of the employer’s justification for using them. 

Importantly, non-union employers should understand that the Act also covers their employees.  The protections in the Act apply regardless of the presence of a union.  For example, the Board routinely finds that non-union companies violate the Act when they maintain policies that prohibit employees from discussing their pay or benefits with one another.  A social media policy at a non-union company will likely suffer the same fate without having been narrowly tailored to permit activity protected by the Act.

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