From the Owens and Millsaps Blog

Criticizing an Employer Online: Does the National Labor Relations Act Protect Employees’ Comments on Social Media?

iStock_000003822007XSmallIt is in an employer’s best interests to protect proprietary company information, prevent disclosure of confidential client information, and encourage respect and civility among coworkers. But setting out such policies in writing is an increasingly tricky business—particularly when it comes to employee activities online.

The law surrounding workplace social media policies has evolved rapidly in recent years and the burden falls on employers to keep up with the changing landscape.

The National Labor Relations Act has long protected the rights of workers to organize and address working conditions. Specifically, Section 7 of the Act gives employees a right:

to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Section 8, in tandem, prohibits employers from interfering with, restraining, or coercing employees in the exercise of those rights.

In the age of social media, the National Labor Relations Board has interpreted Sections 7 and 8 to, under certain circumstances, protect worker conversations online when they involve, for example, the terms or conditions of their employment, or criticism of management. Since 2010, the agency has taken an increasingly strong stance in protecting U.S. workers from adverse consequences when they post comments about their jobs online, and in rejecting overly broad or restrictive employer social media policies. Unwary employers can quickly find themselves in legal trouble.

Last year, an administrative law judge in Connecticut found that Lily Transportation Corp. violated the National Labor Relations Act when it prohibited employees from posting information online, including “disparaging, negative, false, or misleading information or comments” regarding the company, its employees, or its customers, without company approval. The judge said the policy was overly broad and could have a chilling effect on protected employee activities.

The company also violated the law when it prohibited the “[d]isclosure of confidential information, including [c]ompany, customer information and employee information maintained in confidential personnel files” in its Employee Handbook. Although such a policy may seem innocuous enough, the judge determined that it ran afoul of the law because employees might reasonably interpret it as preventing them from discussing things they are entitled by law to discuss: namely, their wages, benefits, and other terms and conditions of their employment.

In another 2014 case, the National Labor Relations Board found that bar owners violated the Act when they fired employees who discussed tax-withholding problems at work on Facebook, even though the online conversation was public and included disparaging remarks about the employer. The bar’s internet and blogging policy was also unlawful because, again, it was too broad. The policy prohibited “inappropriate discussions about the company, management, and/or coworkers” but did not spell out what would be considered inappropriate.

To steer clear of potential legal problems, employers must ensure their policies regarding employees’ online activities are clear. They should be broad enough to cover the range of potentially damaging activities that are not protected by the Act, but narrow enough that they don’t include protected employee activities. Similarly, employers should consider the potential legal consequences before taking action against an employee for his or her online remarks.

Often, the best choice for an employer is to work with an employment attorney to develop effective and legal policies regarding what employees say and do online. An experienced employment attorney can also help employers decide on a case-by-case basis which online remarks are actionable and which are off-limits under the National Labor Relations Act.