Labor Law and Social Media Policies

-- By DanielLennard - 15 Oct 2012 (Updated 08 Jan 2013)

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 severely limiting employees’ social media activity. This year, the National Labor Relations Board (NRLB) opened up an aggressive front against corporate social media policies that 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 organize and shed light on illegal working conditions. On the other hand, the NLRB’s expansive reading of the NLRA will necessarily encroach on important employer interests.

Any analysis of new protections of workers’ rights in America must begin by acknowledging the expansive power of at-will employment. One must measure any slight expansions of union employees’ rights against the legally protected right of employers to fire non-union employees for any reason. Unionization only affords employees with limited protections; the game is still rigged against the workers. Nevertheless, it is encouraging to see that the NLRB has taken steps to protect workers in the social media forum.

The New Position

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 critical for the NLRB to extend labor law into the social media sphere and to take a stand against out truly oppressive corporate social media policies. I will explore how the broadness of the NLRB’s position presents several concerns for businesses and raises the possibility for various legal conflicts.

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.” While I generally support the NLRB’s position, it may leave employers needlessly exposed to harmful public disclosures. The harm that a consumer electronics company, for instance, would hope to avoid by issuing a social media policy regarding public disclosures (e.g., the posting on Facebook of pictures or descriptions of products still in development) seems rather attenuated from labor concerns regarding the “terms and conditions of employment.” Although I believe the NLRB should more carefully flesh out its concerns regarding labor issues this area, it is important to note that employers have other means of protecting themselves. Employers have traditionally resorted to trade secret lawsuits to seek injunctions, damages, and other remedies against employees. However, these remedies are not always effective against the immediate, widespread reach of Facebook, Twitter, and other social media applications.

Employers might also argue that the NLRB’s position on social media policies exposes companies to undeserved liabilities arising from disputes between employees. 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.” I believe it is questionable whether the particular provision that the NLRB struck down is overbroad. Nevertheless, arguing that this provision is not overbroad would probably require a court to acknowledge that employee free speech is simply not as protectable as citizen free speech.

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. However, employers could likely solve this issue by requiring a “no-endorsements” provision in their contracts. The NLRB’s new position also may leave corporations 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—greatly expands employees’ right to disparage their employers, which I believe employers should be entitled to protect themselves from.

Although I believe NLRB’s new position will require refinements, I think it is an important step in loosening employers’ control over employees. Within the limited parameters of our current labor system, this position will allow workers to harness social media for a positive purpose: improving labor conditions. The at-will system shows no signs of collapse; perhaps the most realistic gains for workers one can hope for are these slight expansions of freedom.

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