LEGAL
Last month, the National Labor Relations Board (NLRB) decided that several Facebook posts and one "Like" by employees disparaging the employer were protected under the National Labor Relations Act (NLRA), and subsequently reversed the employees' terminations that were the result of those acts.
If you're interested in the details of what Facebook speech is protected and when, I wrote a full post about these aspects of the case earlier this month. This article will instead discuss another aspect of the case: the employer's social media policy, which was held to be unlawful by the Board in the same ruling.
The social media policy of the business in question, Triple Play Sports Bar and Grille in Watertown, Connecticut, was, in relevant part, the following:
[W]hen internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing confidential and proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. ... In the event state or federal law precludes this policy, then it is of no force or effect.
The portion in question that rendered the policy unlawful is the part pertaining to "engaging in inappropriate discussions." The Board noted that under Section 8(a)(1) of the NLRA, which makes it an "unfair labor practice" (i.e. unlawful) "for an employer... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." Under Section 157 (or Section 7 of the NLRA), employees have the right to, among other things, "engage in...concerted activities for the purpose of...mutual aid or protection."
In other words, a social media policy is unlawful under the Act if it interferes with employees' rights to organize on matters related to employment. In this case (Three D, LLC (Triple Play), 361 NLRB No. 31 (2014)), the social media policy was used to justify the termination of two employees because of comments and a "Like" on Facebook.
The discussion in question on Facebook was about a discrepancy in the employer's state tax payroll withholding that caused its employees to owe more in taxes to the state than expected. Because these series of posts and comments were related to an ongoing work dispute with the employer, the discussion was protected under Section 7 of the Act, and the employer's policy, in prohibiting such conduct, was unlawful.
But how did the text of the policy run afoul of the Act? The Board cited to its own 2004 ruling, Lutheran Heritage Village, 343 NLRB at 647, to hold that if "employees would reasonably construe the language to prohibit Section 7 activity," the policy is unlawful. Because the wide scope of the policy's "inappropriate discussions" language would be readily construed by employees as prohibiting Section 7 activity, the Board ruled it unlawfully overbroad.
In addition, the board refused to give the final savings clause of the policy any effect, since the clause did not shield the two employees from termination for their protected Section 7 activity.
Considering that the Board continues to carefully scrutinize employer social media policies, you should take extra care to ensure compliance with the requirements of this and other NLRB rulings.
For one, avoid using subjective language that could allow employees to interpret as chilling Section 7 activity. If subjective language is unavoidable, make sure that you provide as many illustrative examples as possible of acceptable and unacceptable behavior under the policy. The Board made a specific point about how the unlawful policy provided no "illustrative examples" to help employees understand what is "inappropriate."
Finally, savings clauses such as the one included at the end of the policy in this case are often of little help to employers in circumstances where the policy is used to justify adverse employment actions that are later determined to be unlawful.
In short, just try to ensure that your company's social media policy makes it as clear as possible to employees that it does not prohibit or otherwise chill their protected Section 7 activity.
Jeremy Byellin is a practicing attorney in the state of Minnesota and a writer for the Westlaw Insider blog. His articles for the blog cover a wide range of legal topics, with a specific focus on major legal developments and cyberlaw.
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