Author: Beth P. Zoller, XpertHR Legal Editor
Recent decisions from the full National Labor Relations Board (NLRB) as well as an NLRB Administrative Law Judge (ALJ) highlight the fact that social media policies and employee communications remain on the agency's radar and that it continues to uphold the right of both union and non-union employees to engage in protected concerted activity over social media networks. This is true even as the Noel Canning decision, questioning the authority of the NLRB and whether it has acted appropriately, makes its way to the Supreme Court.
In UPMC et al. v. SEIU Healthcare Pennsylvania, +2013 NLRB LEXIS 268 (April 19, 2013), the ALJ determined that UPMC's "electronic mail and messaging policy" prohibiting employees from using the company email system in way that is "disruptive, offensive to others, or harmful to morale" or to "solicit employees to support any group or organization, unless sanctioned" by management was unlawful because these provisions were overly broad, ambiguous and violated Section 7 of the NLRA which permits both union and nonunion employees to unionize and engage in protected concerted activity to improve their wages, hours and working conditions. The ALJ further determined that UPMC's "acceptable use of information technology resources policy", preventing employees from using employer-issued technology to communicate via social media without first obtaining the employer's written consent and from using employer provided computers to make disparaging remarks or misrepresenting the health system, was also overbroad as this prevented discussion with others about work. In reaching its decision, the ALJ relied on the NLRB's recent decisions in Costco and Karl Knauz, which struck down similar policies in violation of Section 7 and the right of employees to freely and collectively discuss wages, hours and working conditions.
Similarly, the NLRB held that the non-union employer in New York Party Shuttle, LLC and Fred Pflantzer, +359 NLRB No. 112 (May 2, 2013), violated Section 7 of the NLRA by terminating a New York City tour guide who publicized his union organizational activities and criticized his working conditions and some of his employer's practices on Facebook and in emails. The NLRB determined that the communications constituted protected union activity, even though they were made to tour guides employed by other New York City employers.
Based on these decisions and other recent NLRB activity, employers should keep the following ground rules in mind when implementing social media policies and disciplining employees for their social media activities:
- Be cautious when implementing social media policies by avoiding broad and ambiguous language that could be reasonably interpreted as preventing employees from engaging in union activity and protected concerted activity and from collectively discussing their wages, hours and working conditions.
- Narrowly tailor the social media policy and use specific examples of prohibited conduct to show that the purpose of the policy is to protect the employer's legitimate interests, such as trade secrets and confidential information, rather than to interfere with employees' rights.
- Provide proper training on social media policies to all employees and supervisors so that they know what is expected of them.
- Before disciplining employees for inappropriate social media activity, consider whether the posting may be protected and evaluate whether it involves an employee's efforts to engage in protected concerted activity or union activity.
- Be careful when disciplining an employee for social media communications, especially if the communications criticize, complain or comment on the employer's wages, hours and working conditions. If an employee's conduct is protected under the NLRA, the employer may face liability.