The National Labor Relations Act and Workplace Social Media Policies

The National Labor Relations Board (NLRB) outlined 9 important edicts for organizations to keep in mind when formulating social media policies.

1. Employers may prohibit employee “rants.” -  If an employee posts complains or remarks inappropriately on social media and is not engaging in “protected concerted activity” with other employees, an employer has the right to take action against the employee.
2. Employers may restrict employees’ commercial use of company marks. - Employees have the right to use a company name, but not company logos or protected marks for commercial purposes. Employees can, however, use these marks non-commercially (work-related discussions, labor related activities).
3. Savings clauses are recommended, but may not win the day. - Include something like, “This policy should not be construed or applied to prohibit employees’ rights under the National Labor Relations Act,” while also being transparently compliant with the NLRA.
4. Confidentiality clauses should be narrowly tailored. - Employees can be restricted from sharing company trade secrets. However, discussions among employees about wages, workplace conditions, and employee/company performance are protected under the act.
5. Generic or overly-broad “courtesy clauses” should be avoided. - Employers may encourage employees not to engage in hateful speech or insults against their company, but can not restrict them absolutely, as public criticism by employees is protected under the act.
6. Restrictions on outside and/or unauthorized interviews may violate the Act. - Employees may participate in these interviews, however, if they act offensively, or with a “bad attitude” in said interviews, it may not be protected by the NLRA, as it does not constitute “concerted activities.”
7. Opinions are largely protected. - Employees are permitted to express their opinions, even if it is factually incorrect, since these discussions aim to come to a collective understanding.
8. Social media policies implemented in response to union activities (or attempts to unionize) are particularly scrutinized. - Do not implement policies meant to dissuade unionizing attempts or union activities.
9. Employers remain entitled to enforce important workplace policies, even in the context of social media. - Employers can limit or restrict the use of social media on company time and equipment, while also prohibiting sexual harassment, violence, abuse and other malicious activity on social media. Employers can politely suggest that employees use good judgment on social media, so long as the suggestion does not infringe on employees’ rights within the act.

(Halpem, 2012).

Despite guidelines that businesses put in place through social media policies, associates use of social media can intentionally or inadvertently tarnish the reputation of an organization.  

Facebook photo (CBS News, 2013).

As an example, we can look to the Taco Bell photo that was taken in 2013 during an internal photo contest showing employees taking their first bite of the new Doritos Cool Ranch Taco.  Taco Bell said in a statement that the photo was not used in the contest, "But an employee posted it on a personal social media page in violation of the franchise's policies, and it emerged online in social media" (CBS News, 2013).  The associate in the photo and the co-worker who posted the photo were both fired for the incident.

Situations such as this occur more often than we may think. This week let’s take a look at some of those situations and see if social media policies (or lack thereof) may have played a part in these situations.

For this week’s discussion, please provide an example of an organization that has taken action against an employee that has caused angst for the company due to social media postings on company or personal social media sites.  

• Do you think the act was intentional or accidental? What were the ramifications (if any) for the employee? Do you agree or disagree with the action?
• How did the organization handle the situation publicly?  
• Do any of the nine important edicts discussed by the NLRB article closely relate to the case you reviewed?

If you were implementing a social media policy for your organization, what policy guidelines do you feel would be most important to include and why?

• Choose two guidelines that apply to an employee’s personal use.
• Choose two guidelines relating to social media use when an employee is representing the organization.
• Utilize the nine NRLB edicts and The United States Army Social Media Handbook as a guide.

CBS News (2013, June 5). Employee fired from Taco Bell for licking shells. Retrieved February 21, 2015, from http://www.cbsnews.com/news/employee-fired-from-taco-bell-for-licking-shells/

Halpem, S. (2012, December 3). When is Your Company's Social Media Policy an Unfair Labor Practice? Recent NLRB Decisions Offer Long-Awaited Guidance for Employers | The National Law Review. Retrieved February 20, 2015, from http://www.natlawreview.com/article/when-your-company-s-social-media-policy-unfair-labor-practice-recent-nlrb-decisions-

Co-Authored by Mandy Sharp