Author: Beth P. Zoller, XpertHR Legal Editor

The message from the National Labor Relations Board could not be any louder - employers should use extreme caution in fashioning any sort of employment or social media policy attempting to restrict employee speech and communications if such a policy could be reasonably interpreted as chilling employee rights to engage in concerted protected activity.

In the wake of the NLRB's first actual decision to address social media policies as well as other recent NLRB decisions on various workplace polices, an Administrative Law Judge (ALJ) held that yet another social media policy is overbroad and various other provisions frequently used in employment policies also violate the National Labor Relations Act (NLRA).

In EchoStar Technologies, 27-CA-066726 (Sept. 25, 2012),the ALJ determined that the social media policy provision at issue could be reasonably interpreted to interfere with the right of union and non-union employees to engage in protected concerted activity under Section 7.

Specifically, the following provisions were held unlawful:

  • A prohibition against making "disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services" through the use of social media;
  • A provision prohibiting employees from using personal social media "with EchoStar resources and/or on Company time";
  • A provision restricting employees from disclosing "information to the media including the press, print, broadcast and their electronic versions and associated websites regarding EchoStar and its activities without the prior approval of the Company";
  • A provision "prohibiting employee contact with government agencies and employee disclosure of governmental agency initiated communications to the Company";
  • A provision "prohibiting employee disclosure of Company investigations involving EchoStar policies, practices, expectations and any applicable law or any other behavior deemed relevant to employment with EchoStar";
  • A provision defining insubordination as "as undermining the Company, management, or employees."

The ALJ held that the handbook's savings clause directing employees to bring questions regarding applicability to HR and to "use your good judgment" was insufficient to notify employees that the questionable provision did not apply to protected concerted activity under Section 7.

In arriving at these determinations, the ALJ relied on recent advice provided in various NLRB decisions as well as General Counsel memos to hold that the policy provisions violated the NLRA because they could be viewed as restricting employees from commenting on the terms and conditions of their employment.

The provisions could be reasonably interpreted as an attempt to "chill" the Section 7 right of employees to engage in protected activity and improve and challenge working conditions.

In light of this decision as well as other recent decisions by the NLRB, employers of both union and non-union workplaces should take a close look at their policies and make sure that they are narrowly tailored to protect the employer's legitimate business interests and do not suggest that the employer is seeking to restrict employee rights under Section 7.

The policy provisions should be carefully worded, specifically describe the prohibited conduct or speech, provide examples where necessary and not discourage employees from working together to collectively improve their working conditions or engage in concerted activity for mutual aid and protection.

Additional Resources

Employee Management > Employee Privacy > Monitoring Use of Social Media Networks

NLRB Strikes Again and Issues First Social Media Decision

NLRB Issues Guidance Focusing on Social Media Policies

Dos and Don'ts Regarding Social Media Policies - Chart

Social Media Policy

Acknowledgement and Consent Form for Social Media Use

How to Draft and Enforce a Social Media Policy in the Workplace

Employee Conduct and Discipline Policy

Dos and Don'ts of Social Media - Supervisor Briefing

Employee Use of Social Media May Constitute Protected Concerted Activity