While employers should enact social media policies to protect trade secrets and prevent employees from defaming the employer, employers must ensure the policies do not violate the National Labor Relations Act (“Act”). Even non-unionized employers are covered by certain aspects of the Act, including those relating to social media policies. The National Labor Relations Board (“NLRB”) conducts a case-by-case basis to determine whether an employer’s policy violates Section 7 of the Act.
In making this determination, the NLRB considers whether the policy is unlawfully broad, which could lead employees to “reasonably construe” the policy as restricting employees’ rights to communicate and discuss with each other or third-parties terms and conditions of employment. The NLRB has ruled that in many, if not most, instances social media postings in which employees comment or complain about management amount to protected activity under the Act. In one well-publicized case, an administrative law judge held that a provision in Chipotle employee handbook that prohibited employees from making “false” statements was overbroad. The administrative law judge ruled similarly with respect to the language in Chipotle’s policy that prohibited disparaging comments. Even a disclaimer which indicated that the policy did not restrict any activity protected by the Act did not salvage the policy for Chipotle.
With social media policies being an area of enforcement priority for the NLRB, employers will be well served to consult with counsel regarding creation and implementation of such policies.