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Social Media Communications May Constitute Protected Activity

lu_hwe_logo.jpgSection 8(a) of The National Labor Relations Act prohibits employers from interfering with rights conferred upon non-supervisory employees by Section 7 of the Act, which states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].

The terminology of Section 7 may lead some employers to conclude that it applies only to a unionized workforce. Such language, however, also applies to employees of non-union employers.

Employees engage in protected activity whenever they address the terms and conditions of employment, such as wages, hours or benefits, their working conditions, and management. An employer violates the Act if it sanctions employees who communicate with each other about those protected subjects.

The National Labor Relations Board administers the Act. Each year, the Board issues opinions to assist employers in complying with the Act. Since August of 2011, the Board has issued three opinions about employer social media policies. These policies have proved to be another example of the challenges which face employers as technology continually evolves.

Many employees who engage in social networking, on sites such as Facebook, are connected with fellow employees. These employees may comment about subjects which are covered by Section 7. If these employees participate in concerted activity, their communications must not result in employee discipline. Concerted activity involves the actions of two or more employees. Based on this definition, according to one administrative law judge, if an employee simply clicks the "like" button in response to a co-worker's post about a topic covered by Section 7, the communication is likely protected.

The Board's most recent opinion, issued in May of 2012, cautions employers against utilizing social media policies which could prohibit Section 7 activity. In its opinion, the Board analyzed several specific policies and offered guidance for employers who wish to create or modify social networking policies. The Board explained that an employer's social media policy can prohibit employees from disclosing "secret, confidential or attorney-client privileged information" because employers are entitled to protect such information. By contrast, the Board criticized policies which prohibit employees from releasing "confidential guest, team member or company information," since that language could reasonably be interpreted as precluding employees from discussing the terms and conditions of employment of themselves or co-workers.

Also, while the Board recognized that an employer's social media policy can prohibit "harassment, bullying, discrimination, or retaliation" through social media activity, since the employer has a right and duty to control such conduct, the Board took exception to a more general policy which proscribed "offensive, demeaning, abusive or inappropriate remarks" both online and offline, because that proscription could chill protected communications, including criticism of management.

Based on the Board's opinions, employers would be well-advised to review their social media policies and gauge whether imprecise language could violate the rights of employees under the Act.



Please contact us at www.hwelaw.com if you have questions regarding this article or if we can be of assistance.

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