The NLRB and Social Media: What You Need to Know

By BEN HEINEMANN When it comes to talking about your job via social media, it’s usually better to be safe than sorry and leave the two separate. However, employees actually have rights when it comes to talking about work issues on platforms like Facebook and Twitter. In that case, it’s better for employers to be safe than sorry and have a carefully drafted social media policy that also complies with the National Labor Relations Board(NLRB) and the National Labor Relations Act (NLRA), specifically section 7. “Social media is becoming a much more prevalent aspect and technology in general--in business today, in our personal lives, and in things that happen in our workplaces,” said ADP’s Executive for the Small Business Services Division Michael Pires during the International Franchise Association’s recent Public Affairs Conference. “Section 7 of the NLRA basically governs the right for employees to band together and engage in what’s called concerted protected activity.” So why should your business care about this and how does section 7 of the NLRA relate to social media? “Protected activities are effectively the ability for [your employees] to improve wages, hours and work conditions,” continued Pires. “Chances are if you don’t already, very soon you’ll have a Twitter account, a Facebook account or Foursquare account. So do your employees. What’s happening out there in communications is really having an impact on the workplace, specifically on this concerted protected activity and how that’s viewed by the NLRA.” Section 7, when applied to social media, means your employees actually have the right to complain about workplace issues, like the work environment and wages, across any and all social media platforms. “Prohibiting employees from improving conditions or communicating about those conditions, even in social media, could be viewed as unlawful,” said Pires. This may be an alarming piece of information for many employers since a lot of the NLBR’s policies related to the NLRA and social media are fairly new, having been developed over the past 12 months. Initially, the NLRB looked how employers were terminating employees as a result of employees posting on social media platforms. In January of this year, the NLRB took it a step further, focusing specifically on how some of those situations were being impacted by new legislation and lawsuits that resulted from terminations based on social media. Just this May, the NLRB took another step and took a look at a number of large companies to see if their social media policies were in compliance with the NLRB. They found that many were not. “Some of the cases they looked at were lawful and some were unlawful,” said Pires, noting again that employees have the right and the opportunity to voice concerns about something in the workplace. Comments by other employees on an original post can also affect if a post is protected or not, turning the whole issue into one very big slippery slope. To make sure you are not violating the law while still ensuring the integrity of your business and your employees, follow the steps below:

1. Draft a policy carefully and understand what the NLRB is trying to do in its legislative governance around this issue. Understand the NLRA and how that’s impacting you.
2. Seek legal counsel or professional expertise when it comes to drafting your policy. Even if someone in your organization has a background on this topic, having a third party view will be important especially as the legislation continues to evolve and court cases continue to develop.
3. Evaluate each situation in which a comment or post might be violating company policy on a case by case basis. Don’t be too quick to fire an employee because of a Facebook post or tweet. As Pires said, “Be cautious about any actions you take because it may come back to haunt you.”

As social media continues to evolve and become an even more prevalent part of both work and personal life, the NLRB will only further scrutinize employee termination cases based on social media posts. “The use of social media is not going to go backwards,” said Pires. “You’re going to see more of it and it’s something that we should really be thinking about. If you are a larger franchise with various franchisees around the country, the visibility could be high as [the NLRB] continues to dive into these issues.” You can read the full text of the NLRA by clicking here. For more information about the NLRB, click here.