Author: Beth P. Zoller, XpertHR Legal Editor

The National Labor Relations Board (NLRB) continues to dish out advice regarding social media in the workplace policies as well as employee speech and communications. On this month's menu, an Administrative Law Judge (ALJ) considered whether a company's policies regarding social media as well as contact with the media and government agencies were lawful or in violation of Section 7 of the National Labor Relations Act (NLRA) and the right of employees in both union and non-union workplaces to engage in "protected concerted activity."

Specifically, in DISH Network Corporation, Case No.16-CA-062433, the ALJ examined DISH Network's social media policy instructing employees that unless "specifically authorized to do so" they may not participate in social media activities "with DISH Network resources and/or on Company time." The policy further provided that employees "may not make disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their products/services." The ALJ found this policy unlawful because any attempt to ban disparaging, defamatory or negative commentary by employees violated the NLRA and interfered with the employees' right to engage in protected concerted activity. The ALJ further held that DISH Network's attempt to restrict employees from engaging in negative electronic discussions during "company time" was improper because it failed to mention that solicitation can occur during breaks and other non-working hours at DISH Network's place of business.

The ALJ then considered DISH Network's policy advising employees to direct all inquiries from the media to the corporate communications department and "obtain written authorization from the Corporate Communications Department before engaging in public communications regarding DISH Network or its business activities." The ALJ held that this policy was also unlawful as it interfered with the Section 7 rights of employees to "improve terms and conditions of employment by seeking assistance outside the immediate employer-employee relationship."

Lastly, the ALJ considered a policy advising employees that DISH Network's General Counsel must be notified of any communication from government agencies concerning the company. The ALJ determined that this violated the NLRA since it could be construed by employees as a limitation on their independent communications with NLRB Board agents.

With the increased use of social media and electronic communications in the workplace, employers have a valid interest in seeking to control and monitor employee social media use as well as how employees communicate with government agencies and the media. However, based on this case and other recent NLRB cases, employers should proceed carefully when crafting any policies dealing with these issues and make sure to not unnecessarily infringe on employees' rights to engage in protected concerted activity. See NLRB Approves Employer's Social Media Policy; Administrative Law Judge 'Echos' NLRB's Most Recent Decisions on Social Media and Workplace Policies.

Instead, the policies should be narrowly tailored, avoid broad and ambiguous language and be as specific as possible. If an employer is able to show that the policy it implemented was narrowly drafted, provided explicit examples of prohibited conduct and contained a savings clause specifically assuring employees that the policy would be administered in compliance with the NLRA and the employer was not trying to restrict or interfere with the employees' right to engage in protected concerted activity, the employer's policy may be able to survive scrutiny.

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