Employers’ Ability to Limit Employees’ Online Activities Curtailed as Social Media Policies Come Under Scrutiny

Sierra J. Spitzer, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
Published:  08.01.2013

No one likes to be bad mouthed, especially in a public forum.  Up to this point, the threat of discipline, up to and including termination, provided by employers’ “Social Media” policies, has offered employers somewhat of a safeguard against disparagement in the social media platform by their employees.  However, more recently, the National Labor Relations Board (“NLRB”) has taken an increased interest in employers’ policies on Social Media and is reviewing them with a heightened scrutiny that could spell trouble for employers who try to curtail employees’ social media activities.

In the span of the approximately one year between August 2011 and May 2012, the NLRB issued three reports relating to its review of employee policies.  Out of the seven policies reviewed in the May 2012 report, only one passed.  The other six were found to be overly broad and in violation of the employees’ rights.  Specifically, the NLRB took issue with the provision of employers’ Social Media policies which seek to limit employees’ postings about the employer or co-workers on a social media platform and to employers disciplining and/or terminating employees in response to discovery of same.  

The NLRB has taken the position that blanket provisions against work-related postings or making negative or derogatory statements about one’s co-workers or employer run afoul of Section 7 of the National Labor Relations Act (“NLRA”) which protects the right of employees to organize a union and gives employees the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” and Section 8(a)(1) governing employees’ right to discuss with employees and/or non-employees terms and conditions of employment.  

What is Concerted Activity?

The test to determine what constitutes “concerted activity” and is protected under the NLRA was established in Meyers Industries (Meyers I), 268 NLRB 493 (1984), and Meyers Industries (Meyers II), 281 NLRB 882 (1986). Under the Meyers Test, the question is whether the activity is “engaged in with or on the authority of other employees” or “solely by and on behalf of the employee himself.”  Thus, the critical inquiry in identifying concerted activity is the link between the employee and their coworkers, and the actions of the employee on behalf of the group to achieve common goals.  Section 7 does not define the Meyers test as requiring interaction with other employees; however, courts have generally limited the actions of a single employee to be concerted activity “only when (1) that in which the lone employee intends to induce group activity, and (2) that in which the employee acts as a representative of at least one other employee.”

What is Not Protected Concerted Activity?

Airing of gripes, irritations, annoyances and simple complaining are not likely to be considered protected concerted activity because they do not relate to important terms and conditions of employment.  For example, statements complaining about the annoying habits of a coworker will not be considered protected or concerted activity because they are not meant to elicit action or related to a collective concern. 

Dealing with Social Media

Under recently enacted legislation in California, employers cannot require employees to disclose access information to their personal social media sites (including, Twitter, Facebook, Google+, LinkedIn and MySpace).  The law also prohibits retaliation against employees who refuse to comply with a demand for access information. [This regulation does not affect, however, an employer's ability to require or request an employee to disclose access information for employer-issued electronic devices or if access is reasonably required to investigate allegations of employee misconduct or violation of laws or regulations.]     

Employers must also be careful about how they deal with the discovery of employees’ social media postings and what measures they take to try to regulate and prevent them.  

In handling employee discipline upon the discovery of an employees’ negative or disparaging social media posting, employers should carefully evaluate whether it could possibly be considered “concerted activity.”  In making this determination, employers should err on the side of caution, because if an employee reasonably believes the policy prohibits Section 7 rights, the policy will be considered unlawful and any disciplinary action taken will be viewed as retaliatory.

In terms of prevention, employers should review the language of their social media policy and make sure that it is not overly broad, ambiguous or restrictive of employees’ rights under Section 7.  Blanket prohibitions should be avoided, there should not be any language that would tend to “chill” concerted activity and the policy should be very specific with respect to prohibited conduct (i.e. harassment, intimidating, workplace violence).  Further, conditions restricting comments to being “professional” or “appropriate” need to be specifically define what these terms mean.  Employers should also specifically define what constitutes “insubordination or other disrespectful conduct” and “inappropriate conversation” before subjecting employees to disciplinary action based on same.  Finally, employers should provide guidance on the appropriate use of social media, expectations of privacy, proper etiquette and protecting company's confidential and trade secret information.