Do you need a social media policy or are the legal hurdles just too great? Now more than ever, people are exercising their First Amendment free speech rights, which, unsurprisingly, can cause heartburn in the workplace. In times of conflict, stress and uncertainty, speech often multiplies, and in times when someone’s speech is accessible to the world with just a few clicks, an employee’s online speech is often presented as the speeches or opinions of the employer. In addition, the National Labor Rights Act (NLRA) presents another obstacle, as it protects the rights of employees to discuss the terms and conditions of their employment. What can and should a responsible employer do?

Many employers implement social media policies, addressing employee actions on social media to enforce their policies and protect their brand. While important, an employee’s right to free speech or the protection of the NLRA is not without limits. How do you balance the First Amendment and NLRA employee protections on the one hand and your business interests on the other? Below are some considerations to keep in mind.

The first amendment may not apply: public employers versus private employers

The First Amendment says that “Congress will not make any law. . . restrict freedom of expression. Then came the 14e Amendment, which applied the First Amendment to state governments and their divisions. All this to say that the First Amendment forbids Public entities, and therefore public employers, infringe on the constitutionally protected rights of their employees to freedom of expression. However, even public employers have some ability to control employee speech, for example when the speech is illegal, riotous, or done as part of their official duties. For example, in Garcetti vs. Ceballos, the United States Supreme Court ruled that the city of Los Angeles did not violate the rights of a public official under the First Amendment by bringing an action against him for a speech given in the course of his official duties even though it dealt with a matter of public interest. Word do not done as part of an official duty and that addresses a matter of public interest is protected by the First Amendment. For example, in Marquardt v. Carlton, the Sixth Circuit Court of Appeals ruled that the city may have violated an employee’s First Amendment rights when she fired him for social media posts of his views on a recent police shooting because it was a matter of public interest.

Don’t forget the NLRA (even if you don’t have a union)

While private employers don’t have to navigate First Amendment issues, they’re not totally off the hook. The NLRA protects the rights of employees to “engage in concerted activities for the purpose of.” . . mutual aid or protection. It is important to note that this has been interpreted to mean that employees have the right to discuss the terms and conditions of their employment, such as rates of pay. For example, in Quicken Loans, Inc. v. National Labor Relations Board, the DC Circuit Court of Appeals sided with the NLRB and said an employer’s policy prohibiting employees from discussing “non-public” job information infringed their rights to discuss conditions of employment.

Although the NLRA is generally associated with unionized workers, employees have this right whether they are unionized or not. So private employers are wary: While the First Amendment doesn’t stop you from controlling employee speech, the NLRA does. . . but only to a certain extent.

Unpacking the NLRA

The NLRA protects an employee’s right to engage in concerted activity by discussing the terms and conditions of their employment. These are commonly referred to as “section 7 rights”. Let’s decompress this:

  • First, the speech must be a “concerted activity”, which means that the employee is discussing with other employees the terms and conditions of his employment, or continue a prior conversation with other employees regarding these terms and conditions. A speech which is only the reflection of the people thoughts and concerns, without proof that other employees have expressed their agreement, is probably not a concerted activity.
  • Second, the discussion must revolve around employment conditions. Speech that is unrelated to the employee’s job is likely not protected by the NLRA.
  • Finally, any protected speech generally loses its protected status if it is, or violates a company’s anti-discrimination or anti-harassment policy, even if it is concerted and addresses the conditions of employment.

Social media policies: what does the NLRB recommend?

Social media policies generally restrict or attempt to control what employees say online. When do these policies go too far and restrict employee rights under section 7? The NLRB has published some reports summarizing its decisions on social media policies and practices that violate the rights of employees under section 7 to discuss the terms and conditions of their employment.

The NLRB’s rule of thumb: A social media policy is illegal if a reasonable employee interprets it as prohibiting the exercise of section 7 rights. It almost always depends on the context surrounding the provisions.. However, here is a list of some common provisions that the NLRB has deemed too broad:

  • Prohibit employees from making “derogatory”, “damaging” or “embarrassing” remarks about the company or from discussing the company in an “inappropriate manner”
  • Prohibit employees from posting photos of themselves in any media representing the company in any way, including company uniform or logo
  • Prohibit the use of language or action that is inappropriate or of a general offensive nature
  • Prohibit employees from disclosing or communicating information of a “confidential, sensitive or non-public” nature, without giving examples
  • State that employees should generally avoid identifying themselves on their social media as company employees
  • Require employees who have identified themselves as company employees on social media to expressly state that their comments are their personal opinions and do not necessarily reflect the views of the employer

Often, if the provision of a social media policy includes examples of prohibited behavior, which do not imply section 7 rights, or if it limits the prohibited behavior to certain circumstances, such as speaking to the press, the NLRA will consider that an employee could do not reasonably interpret it as a violation of their rights under Article 7.

It is important to note that in some cases the NLRB has ruled that even though the social media policy was too broad, the employer nonetheless legally sanctioned an employee for their actions on social media (for example, the employee speech was unrelated to job, not concerted with other employees, or harassment). So, keep in mind that a policy that is too broad is not enough to determine whether an action against an employee has violated the NLRA; the important thing is to know whether the action taken has been because of or restricts one conversation between employees on the terms of their employment.

Take away food

If you want to implement a social media policy, consider the First Amendment and the NLRA. Policies are great ideas and can give your employees valuable advice on what they should and shouldn’t do. However, remember that the First Amendment applies if you are a public employer. If you’re a private employer and want to sanction an employee according to a social media policy, take a deep breath and think about Section 7 rights of the NLRA (and maybe call your legal counsel).

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