Labor Law and Social Media Policies

-- By DanielLennard - 15 Oct 2012

Social media websites and applications have the capacity to play a powerful role in labor movements. Through Facebook, Twitter, LinkedIn? , and other services, organizers can help coordinate labor activity, disseminate information to workers, and publicize their grievances. With the growth of social media, many corporations have instituted company guidelines limiting employees’ online activity. This year, the National Labor Relations Board (“NRLB”) opened up an aggressive front against corporate social media policies that potentially threaten workers’ rights under Section 7 of the National Labor Relations Act (“NLRA”). The NLRB’s new position—as reflected in official memoranda and administrative case law—will likely help workers to organize and to shed light on illegal working conditions. Unfortunately, the NLRB’s expansive reading of the NLRA threatens important employer interests.

The NLRB’s position seemingly outlaws a very broad spectrum of corporate social media prohibitions. The NLRB’s General Counsel has published three memoranda describing specific employer guidelines that the NLRB considers unlawful. These include guidelines that broadly prohibit, without clarifying language, disclosures of “confidential” or “non-public” information, as well as online postings that are “inflammatory” or “defamatory.” The memoranda state that such prohibitions, even prior to their actual enforcement, would chill employees’ NLRA Section 7 rights, which include the right to organize and the right to disclose, expose, and debate the terms and conditions of their employment. In two recent cases, EchoStar and Costco, administrative judges have closely followed the General Counsel’s memoranda in striking down corporate social media policies.

The NLRB’s effort to protect employees from vague or overly broad social media policies is an important step in bringing labor law up to date with the current state of communications and media. It was important for the NLRB to extend labor law into the social media sphere and to take a stand against truly oppressive corporate social media policies. However, the broadness of the NLRB’s position presents several concerns for businesses and raises the possibility of various conflicts of law.

The new NLRB position threatens corporate interests in protecting intellectual property and inside information. The latest NLRB memorandum advised that a company guideline instructing employees to not post “material non-public information” or “confidential or proprietary” information is unlawful due to vagueness. The NLRB argued that such prohibitions could “reasonably be interpreted to include information concerning terms and conditions of employment.” I believe this position is overly protective of workers and leaves employers needlessly exposed to damaging public disclosures. The harm that a consumer electronics company, for instance, would hope to avoid by issuing a social media policy (e.g., the public disclosure of pictures or descriptions of products still in development) seems rather attenuated from labor concerns regarding the “terms and conditions of employment.” The NLRB should more carefully flesh out its concerns regarding labor issues in an area where the potential damage to a company via social media—in terms of the threat to competitive advantages, trade secrets, and intellectual property—is very significant.

The NLRB’s position on social media policies also leaves companies needlessly exposed to liabilities arising from disputes between employees. For instance, a senior employee could use a social media site to disparage or harass a worker who answers to him at work. A company should be able to protect against the potential liability arising from a private suit in this scenario. Nevertheless, the most recent NLRB memorandum notes that a company’s prohibition against making “[o]ffensive, demeaning, abusive or inappropriate remarks” online was held to be unlawful because such a provision proscribes a “broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.” This is another case of the NLRB preemptively striking down a reasonable company guideline whose potential chilling effect on labor speech is rather attenuated.

There are further potential downsides to businesses as a result of NLRB’s aggressive position on social media guidelines. Corporations may be liable under Federal Trade Commission regulations when employees give online endorsements to products from their employers. The recent NLRB position threatens employers’ ability to curb such endorsements. Further, corporations may now be more prone to reputational damage as a result of employees’ social media activity. Historically, courts have construed the NLRA to protect employees’ ability to criticize their company’s products or services, so long as the criticism was tied to a labor dispute. The NLRA was not read to give employees the all-encompassing right to disparage their company’s products or services. The recent NLRB position—which is reflected in the EchoStar and Costco decisions—seemingly greatly expands an employee's right to disparage his employer.

• #Set ALLOWTOPICVIEW = TWikiAdminGroup, DanielLennard
• #Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.