Could Your Social Media Policy Violate the NLRA?

Social media presents many privacy challenges to employers.  Now, the National Labor Relations Board (“NLRB”) has stepped in and shown that it has an ongoing interest in a company’s social media policy – especially where an employee’s rights under the National Labor Relations Act (“NLRA”) may be violated. 

We are still awaiting more information regarding the NLRB’s discussions with Thomson Reuters Corp. regarding alleged violations of federal labor laws in connection with negotiations between Thomson Reuters and the Newspaper Guild of New York.  It was the NLRB’s contention that Thomson Reuters violated a reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a message on Twitter stating:

One way to make this the best place to work is to deal honestly with Guild Members. 

NLRB’s allegations against Thomson Reuters for violations of the NLRA are the first involving Twitter. 

The NLRB’s continued interest in social media policies is underscored by its April 2011 Memorandum [pdf.], seeking comment pertaining to:

Cases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter.

This is not the first time that the NLRB confronted a company regarding its social media policy related to employees’ comments on Facebook.  In February 2011, a settlement was reached with American Medical Response of Connecticut regarding their firing of an employee who criticized the company on Facebook.  In the complaint, the NLRB alleged that the firing of the employee was illegal because the employee’s online comments should be akin to “protected concerted activity” under the NLRA.

More recently, the NLRB issued a complaint against the Hispanics United of Buffalo (“HUB”) regarding the discharge of five employees for their criticism of working conditions on Facebook.  In the NLRB’s May 18, 2011 press release, it was stated that the employees’ Facebook discussion was conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels – which was “protected concerted activity” within the meaning of Section 7 of the NLRA.

Employers should remain aware of the challenges they face when dealing with social media issues.  The NLRA appears to be sending a clear message that social media policies that prohibit employees’ comments on the Internet and in social media, despite the comments bordering on insubordination or disloyalty to the company, as being stifling of ”protected concerted activity” afforded to employees under the NLRA.