Part 2 – Social Media, the NLRB and Employer Policies

 

Ever since the National Labor Relations Act (“Act”) was passed in 1935, employees have had the right to engage in “protected concerted activity” (“PCA”) for their mutual aid and protection. These rights apply to employees regardless of whether they are represented by a union in their workplace.

Under President Obama, the NLRB has been very aggressive in further expanding employee rights to engage in PCA. This conclusion is supported by the NLRB’s rulings or official guidelines with regard to social media, employment-at-will and off-duty access policies.

Social Media and Related Policies

No other policy area has received more attention by the NLRB than social media. The attention has arisen because social media is a relatively new technology, at least when compared to the history of the Act. Social media policies also cover a broad range of topics, such as confidential information, harassment, workplace violence, contact with third parties, the media or government agencies, and therefore may involve many different employee rights.

The NLRB’s General Counsel issued three different papers setting forth guidelines concerning what employers may and may not say in social media policies. The length and scope of these guidelines gives a lot of insight into the current NLRB’s view of employee rights.

 

Policies or Rules Declared Lawful

In those same guidelines, the NLRB’s General Counsel ruled the following rules to be lawful:

  • Employees should not post “any opinion or statement as the policy or view of the employer or any individual in that capacity as an employer otherwise on behalf of the employer.”
  • Employees should not post “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
  • Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
  • Employees should not discuss information related to the “safety performance of the employer’s systems or components or vehicles” and “secret, confidential or attorney-client privileged information.”
  • “Respect all copyright and all other intellectual property laws. For the employer’s protection as well as your own, it is critical to show proper respect for the laws governing copyright, fair use of copyright material owned by others, trademarks and other intellectual property, including the employer’s own copyrights, trademarks and brands.”
  • Employees should try to work out concerns over working conditions through internal procedures.
  • Use your best judgment and exercise personal responsibility. Take responsibility as stewards of personal information to heart. Display integrity, accountability and respect of core employer values. As a company, we trust – and expect – you to exercise personal responsibility when you participate in social media or other online activities. Remember that there can be consequences for your actions in the social media world – both internally, if your comments violate our policies – and with outside individuals or entities. [It would be unlawful to state: if you are about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it].
  • “Harassment, bullying, discrimination or retaliation that is not permissible in the workplace is not permissible between coworkers online, even if it’s done after hours, from home and on home computers.”
  • No unauthorized postings: Users may not post anything on the Internet or in the name of the employer or in a manner that can reasonably be attributed to the employer without prior written authorization from the president or the president’s designated agent.
  • Employees should expressly state that postings are “my own and do not represent my employer’s positions, strategies, or opinions.”
  • Be “respectful and fair and courteous in the posting of comments, complaints, photographs, or videos”…[along with sufficient examples of plainly egregious conduct]…For example, do not post things that “could be viewed as malicious, obscene, threatening, or intimidating” or “harassment or bullying” and avoid “offensive posts meant to intentionally harm someone’s reputation” or posts that can contribute to a hostile work environment on the basis of “race, sex, disability, religion or any other status protected by law or company policy.”
  • Employees should “maintain the confidentiality of the employer’s trade secrets;”
  • Employees are prohibited from disclosing information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures or other internal business-related communications. [The rule does need to communicate to employees that it does not reach protected communications about working conditions].

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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