Employer’s Social Media Policy Violates NLRA, Says NLRB

I’m not sure there’s been an employment law subject receiving as much attention in the last 12-18 months as social media. Employers have implemented policies to prevent employees from using social media to put the employer in a bad light. The National Labor Relations Board has just issued a complaint contending that such policies can be a violation of the National Labor Relations Act.

The employer’s “Blogging and Internet Posting Policy” said: “Employees are prohibited from posting pictures of themselves in any media, including but not limited to the Internet, which depicts the Company in any way, including but not limited to a Company uniform, corporate logo . . . unless the employee receives written approval from the . . . Vice President of Corporate Communications in advance . . . . Employees are prohibited from making disparaging . . . or defamatory comments when discussing the Company or the employee’s superiors . . . .”

An employee criticized her supervisor on the employee’s Facebook page, and she was fired. The International Brotherhood of Teamsters filed a charge with the NLRB, alleging that the employer’s action violated the NLRA, and in issuing its complaint, the NLRB agreed.

The NLRA forbids an employer from interfering with an employee’s’ right to engage in “protected concerted activity.” In its press release about this case, the NLRB said the employer’s blogging and Internet policy interfered with an employee’s right to engage in protected concerted activity by prohibiting “employees from making disparaging remarks when discussing the company or supervisors and . . . from depicting the company in any way over the Internet without company permission.”

This case is alarming. If the NLRB’s position is initially upheld by an administrative law judge, social media policies may have to be significantly changed until the case is finally resolved. And remember, the NLRA applies to non-union employers just like it does to union employers. Watch this case closely. For more on the ca se, see Dan Schwartz and Jon Hyman.