Can Employers Limit Employees’ Use of Social Media?
(National Labor Relations Act)
With the communication explosion of social media, can an employer prohibit or monitor an employee’s criticism about the employer, work, or compensation through the channels of social media? Although this is still a developing area of the law, employers may be surprised by the answer.
Naturally, an employer may prohibit and monitor the use of employee communications while at work, on the employer’s time. An employer may also prohibit unlawful conduct such as harassment of co-workers, threats of violence, and the disclosure of private and confidential business information and data. However, can an employer make policies prohibiting criticism or disrespect of their employer on social media sites while the employee is not at work and on their own personal time? Further, may an employer demand access to an employee’s social media page or monitor such employee communications? Not always.
The National Labor Relations Act (NLRA) and the accompanying National Labor Relations Board (NLRB)
The National Labor Relations Act (NLRA) is a 1935 Federal Law that limits how employers may react to employees who create labor unions, engage in collective bargaining or take part in strikes and other forms of concerted activity in support for their demands. The National Labor Relations Board (NLRB) is the agency responsible for enforcing an employee’s rights under the NLRA. The act applies to the private sector, even in workplaces without a collective bargaining agreement or union.
Section 8(a)(1) of the NLRA prohibits employers from the “unlawful surveillance” of their employees’ communications that may interfere with, restrain, or coerce an employee regarding the employee’s rights to form, join, or assist a labor union. The purpose of this law is not to encompass all employee communications, just those where monitoring would bring fear to employees, causing them to refrain from forming, joining, or assisting a labor union. The NLRB’s overall mission is to protect the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.
Since the NLRA and NLRB were established in 1935, the channels of communications have changed drastically. With over 1.4 billion users worldwide among Facebook, Twitter, and other social media sites, the ability to ‘round up the troops’ or sway an opinion is unprecedented. Unions and employees increasingly use social media sites to organize campaigns, and employers also increasingly use social media sites to market and network. It thereby becomes difficult to distinguish between an employer intentionally monitoring an employee and inadvertently being exposed to such activity. How is an employer to determine whether their activity is permissible, or whether it violates the Act?
Protected, Concerted Activity Applied to Social Media
According to a report issued by the Board’s Acting General Counsel Lafe Solomon on Jan. 25 2012, the protection extends to communications that are found to be a “protected, concerted activity”, which is defined as one that includes the discussion of wages, hours, and terms and conditions of employment with, or upon the authority of, other employees, and when such activity is the logical outgrowth of concerns expressed by the employees collectively. An employee’s comments, however, on social media sites are generally not protected if they are mere gripes not made in relation to group activity among employees.
The Jan. 25, 2012 report further discussed surveillance by using a sample case. That case involved an employee who claimed to have been constructively discharged because of comments he made on his Facebook page. In this case, the employee’s page was set on private, but he ‘friended’ his supervisor. The employer obtained unsolicited Facebook materials from co-workers, who had set their page on ‘private,’ but also ‘friended’ the supervisor. The Board held that the employer did not engage in unlawful surveillance because the employee voluntarily granted his employer access to his social media page. In other words, if the employee voluntarily grants access to the employer, the activity is not a ‘protected, concerted activity,’ and any viewing from the employer is not illegal monitoring.
What remains unclear, among other issues involving surveillance of social media sites, is how the Board will address a circumstance where an employer is monitoring the Internet to view an unsecured union website available in the public domain containing information regarding an organizing campaign targeting the employer, and the website contains links to social media sites providing a forum for employees to discuss the organizing activity. If the Facebook link, for example, is only available to individuals when the union affirmatively “friends,” but the website itself contains some of the same information discussed on the social media site, as well as a link to join the website, where must employers draw the line? An employer may have a viable argument that employees who become members of the website are making information about their pro-union inclination just as publicly available as employees who picket outside the employer’s premises. The facts of each individual case are reviewed in determining how an employer can (and should) respond.
Seek an Experienced Attorney
The extent of NLRA protection is still being considered with pending cases. Because the law is still developing and each situation is unique, employers should seek counsel from an experienced attorney when creating policies concerning social media sites to analyze their specific facts against the current law.
Written By Brad Denton
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213
40 N. Central Avenue, Suite 1400-1532
Phoenix, AZ 85004
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