Social Media and the NLRB: How New York and New Jersey Businesses Can Avoid Accidentally Breaking Federal Labor Laws

329px-Space_Shuttle_Discovery_over_Capitol.jpgSocial media has allowed companies to reach out to customers and expand their businesses more than ever before. It has also given individuals new modes of communication and expression. Unfortunately, the intersection of personal and business use of social media can be problematic for employers.

Companies have enacted a wide variety of social media policies, ranging from the highly laissez faire to the highly restrictive, in an effort to moderate employees’ use of social media. Employers face the difficulty of enforcing their policies, as employees may simply move their usage from company machines to their own smartphones. More importantly, though, are concerns about compliance with federal labor laws.

The National Labor Relations Board (NLRB) has published several reports on social media-related labor complaints over the past year. Its findings stop well short of articulating a distinct set of regulations or guidelines, but they offer a valuable guide to the issues that the federal government considers important.

The NLRB released its first report, entitled “Report of the Acting General Counsel Concerning Social Media Cases,” on August 18, 2011. It released updated reports on January 24 and May 30, 2012. Each report consists of reviews of cases brought before the NLRB in the past few years involving social media. Many cases involve a complainant who was terminated due to violation of an employer’s social media policy, often for something posted to a site like Facebook or Twitter. The NLRB reviewed whether the termination was lawful. In some cases the NLRB also reviewed the legality of the employer’s policy.

The first report dealt extensively with questions of whether a given social media activity constituted “concerted activity” protected by labor laws. “Concerted activity” refers to conduct undertaken by employees, outside of a union, to further a goal of improving employment conditions or asserting some other right. Such activity is generally protected from retaliation by employers. The NLRB found that social media activities that addressed concerns with employment conditions fell under the protection of federal labor laws. Activities that served solely to disparage an employee’s co-workers or managers are not protected, it ruled.

All three reports, in reviewing the legality of employers’ social media policies, considered whether the policies were “overbroad.” The definition of that term is itself quite broad. Based on the cases reviewed by the NLRB reports, key factors to consider include whether activity prohibited by a company’s social media policy is reasonably related to the company’s business activities, or if the policy seeks undue restrictions on employees’ private communications. Restrictions that seem obviously acceptable include restrictions on transmitting confidential or proprietary information.

Prohibiting the use of social media in ways that are “bullying,” while on company time, may also be an acceptable policy. Policies that sought to prohibit actions to which employees arguably have a legal right were generally found to be unlawful. These included prohibitions on talking to the press, discussing wages or other conditions of employment (even in a “robust” manner), or even merely “friending” other employees.

The New York business attorneys at Samuel C. Berger, PC offer fixed-fee packages of legal services to businesses and entrepreneurs who want to do business in New York and northern New Jersey. To speak to a member of our skilled legal team, contact us today online, or call (212) 380-8117.

Web Resources:

Memorandum OM 11-74, Report of the Acting General Counsel Concerning Social Media Cases (PDF), Office of the General Counsel, National Labor Relations Board, August 18, 2011
Memorandum OM 12-31, Report of the Acting General Counsel Concerning Social Media Cases (PDF), Office of the General Counsel, National Labor Relations Board, January 24, 2012
Memorandum OM 12-59, Report of the Acting General Counsel Concerning Social Media Cases (PDF), Office of the General Counsel, National Labor Relations Board, May 30, 2012
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Photo credit: ‘Space Shuttle Discovery over Capitol’ by US Department of Labor (AF8E4609Uploaded by evrik) [Public domain or CC-BY-2.0], via Wikimedia Commons.