Last week, the U.S. Chamber of Commerce published the results of a comprehensive survey of the NLRB’s examination of workplace social media policies. In completing its Survey of Social Media Issues Before the NLRB [pdf], the U.S. Chamber examined 129 NLRB cases involving social media. Do not make the mistake of thinking that these issues only affect unionized businesses. As the Chamber made very clear, “a significant percentage of cases in our survey involved non-union employers with no union activity.”
The Chamber reached the following conclusions:
The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
With respect to employer policies restricting employee use of social media, our review of cases found many specific policies alleged to be overbroad, including those that restrict discussion of wages, corrective actions and discharge of co-workers, employment investigations, and disparagement of the company or its management. The context in which the policy was adopted and even the issue of whether a rule or policy has been actually adopted are also important in these cases.
The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.
Despite the Chamber’s survey, this area of federal labor law—which affects every employer, unionized or not—remains very much unsettled. Today’s protected activity is tomorrow’s unprotected employee rant, and vice versa. In other words, taking action against employees for social media comments that discuss wages, benefits, or other terms or conditions of employment remains risky.
If you are interested in learning more about this important issue, the Chamber’s full report is available from its website. I also recommend the chapter written by Seth Borden for Think Before You Click: Strategies for Managing Social Media in the Workplace, in which he discusses these issues in great depth.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.