By: Tom Barton, employment and commercial litigation attorney
June 27th, 2017
Believe it or not, a law passed over 80 years ago, during a high point of labor union activity in America, is creating headaches for employers with regard to a very modern activity: social media. If your company has a social media policy (or is thinking about implementing one) be careful. You could get tripped up by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157 (“Section 7”).
Section 7 applies to non-union employers as well as to union employers
Section 7 applies to ALL employees (union and non-union) and protects their right to engage in “concerted activities” for their mutual aid and protection. This means employees are free to discuss wages and working conditions with themselves and others. In decades past, employees talked about their jobs at the workplace, at home, a bar after work, etc. But today, they also talk on Facebook, Instragram, and the like.
Vague social media policies may violate Section 7
To protect against disruptive social media posts by employees, many employers have policies restricting what employees can say about the company and coworkers. The danger is that these policies, many of which seem reasonable on the surface, may be too vague and go too far. They may impermissibly restrict, or unreasonably “chill,” employees’ Section 7 rights.
For example, in August 2016, the National Labor Relations Board (the “NLRB”) struck down Chipotle’s “Social Media Code of Conduct,” which prohibited employees from spreading “confidential” information and making “disparaging” statements about the company. Because these terms were not defined, however, the NLRB decided this language was too vague and could include statements that would be protected by Section 7. Similarly, the NLRB concluded that prohibitions against making “false or misleading” statements were too broad, because under the NLRA, such statements are protected unless they are made with a malicious motive. The NLRB also found that a provision that restricted the use of the company’s name and logo went too far because employees may need to identify their employer when discussing protected, concerted activity. In June 2017, the Fifth Circuit Court of Appeals upheld the NLRB’s decision, and the NLRB has reached similar conclusions in other cases.
Of course, if your company’s social media policy violates Section 7 of the NLRA, your company will probably also violate Section 7 of the NLRA if it disciplines an employee for violating that policy. In various cases, the NLRB has found such violations and ordered that employees who had been terminated for posting job-related comments on the internet be reinstated to their old jobs with full back pay and interest.
In general, social media policies are lawful and may be a good idea for your company. But if you have one, review the language closely. Avoid vague descriptions and overly broad statements. Remember that your employees have the right to discuss wages and working conditions—whether they’re in the company lunchroom or on Snapchat. If your policy arguably restricts that right, you should consider modifying it. To do that, you should consult with a qualified attorney.
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Tom Barton is an experienced commercial attorney who has litigated a wide variety of business disputes—including matters related to employment, tax, natural resources and real estate, contracts, homeowner disputes, and professional liability cases.