Desperately trying to retain its relevance in a world where unions are going by the wayside, the National Labor Relations Board (NLRB) has taken up the issue of what employers can do about employee posts on the internet.
Under the National Labor Relations Act employees are permitted to engage in “concerted activity” which is to say they can complain about the terms and conditions of their work without risk of losing their jobs. Of course, the difference between now and 20 years ago is that employee used to go to the bar on Friday night and complain about their supervisor over a game of pool or darts. Now, they go home and post on Facebook where the whole world can see it.
For the last several years the NLRB has taken it upon itself to protect employee rights to post on Facebook, and I have no problem with the general idea of protecting employee rights to post. What has been driving me and my clients up the wall is the NLRB’s attack on what employers can say in a social media policy without getting in trouble.
The Board has been draconian in terms of what is acceptable. Specifically, the NLRB uses concern that an social media policy might have a “chilling effect” on an employee’s willingness to post on the internet as a basis to strip employers rights to restrict employees from activity that would not otherwise not be protectable.
In a 24 page report published last week, the NLRB offered tidbits from recent decisions. These are some highlights:
“Don’t release confidential guest, team member or company information” is illegal because an employee might reasonably interpret that as prohibiting them from discussing their own situations on the internet. Hence, it is apparently inappropriate for a business to tell employees to keep the company’s secrets.
You cannot tell employees to be sure what the post on the internet about the company is “completely accurate and not misleading”. The limitation to the truth is apparently overly broad because it might interfere with an employee’s ability to say something so long as it is not “maliciously false.” I recognize the NLRB wants to give latitude to employees before they get in trouble, but affirmatively advocating for their ability to lie so long as it is not “maliciously false” goes overboard for me.
“Report any unusual or inappropriate internal social media activity.” is a violation because it encourages employees to report the union activities of other employees to management. Maybe that is true, but at the same time it prevents an employer from even knowing if an employee has posted the company’s secret formula for its product online!
“Get permission before reusing others’ content or images” is unlawful, because it interferes with employees’ right to take and post photos of, for instance, employees on a picket. This is simply untrue. It only asks that employees get permission before posting someone else’s private content or images.
“Resolve concerns about work by speaking with co-workers, supervisors, or managers” is also unlawful because the employees are not expressly told that they can skip the internal procedure all together and go straight to ranting on the internet. I do not disagree that employees may take grievances to the internet, but the idea that an employer is somehow chilling an employee’s NLRA rights simply because they don’t explain how employees can use the internet to blast their grievances is ridiculous.
And you cannot protect yourself by putting in a disclaimer either. “This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act,” might not make expressly clear to the employee just what they can do under the act.
For the full report, have a look here. You will be amazed.