GregM_BioBy Gregory McIntosh | As Facebook, Twitter, Instagram, and other social media websites and apps become more commonplace, many companies have developed and implemented polices governing their employees’ use of social media during both working and non-working hours.  Many of these policies, though, violate federal law.

The National Labor Relations Act (the NLRA) provides employees with the right to engage in concerted activity for collective bargaining, mutual aid and protection against employer actions.  The National Labor Relations Board (the NLRB) is tasked with enforcing the NLRA.  In recent years, the NLRB has consistently ruled against employers.  For instance, the NLRB has stated that even one employee acting on behalf of other employees to improve working conditions is protected activity.

In several recent cases, the NLRB has stated that seemingly innocuous social media policies violate the NLRA as the policy could be interpreted to prohibit protected activity.  In one case, a company’s social media policy prohibited employees from posting information to any social media site if that information had not already been disclosed as public record.  Although a seemingly reasonable request, the NLRB found that this policy violated the NLRB as it could be interpreted as prohibiting employees from discussing wages and other personnel matters that were not public record.

In a second case, a company’s social media policy prohibited employees from making disparaging remarks about the company on social media and from posting to social media while on company time.  The NLRB found that this policy violated the NLRA as it could be interpreted to prohibit employees from discussing wage and personnel problems just as the policy above.  Additionally, the NLRB found that the policy could be illegally interpreted to prevent union activities during breaks and other non-working hours at the company as it prohibited posting while on company time.

These are only two of the many cases in which the NLRB has sided with employees in finding that social media policies violate federal law.  Employers should not take the drafting of a social media policies lightly.  As the NLRB has consistently sided with employees, employers are well advised to seek legal counsel when drafting their social media policies or disciplining an employee for violation of the social media policy. For more information, contact Greg McIntosh.