What types of social media policies have been found unlawful?

Author: Jessica Sussman

The National Labor Relations Board (NLRB) has found social media in the workplace policies that effectively prohibit protected employee discussion of wages and other terms and conditions of employment are overbroad. An employer's social media policy will violate the National Labor Relations Act (NLRA) if it reasonably tends to chill the right of employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Even if the policy does not explicitly restrict such activities, it may be found unlawful upon a showing that:

  1. The employees would reasonably construe the langue to prohibit protected activity;
  2. The policy was promulgated in response to union activity; or
  3. The policy has been applied to restrict the exercise of such rights.