Authors: Attorney John C. Mitby & Law Clerk Elizabeth L. Spencer
Phone: 608-575- 4077
Email: jmitby@hbslawfirm.com

Social media continues to infiltrate every part of our lives. While employers can often use social media to further their business, they may also be concerned about what employees choose to share with the public. As a result of these concerns, employers may choose to add a policy to their employee handbook in order to dictate behavior. However, employers must be aware of the consequences of including such policies as they may be in violation of the federal National Labor Relations Act (NLRA) and face sanctions from the National Labor Relation Board (NLRB).

The NLRA provides protection to most employees in the private sector with some limited exceptions. The NLRB is a federal agency created to enforce the Act and has offices throughout the nation. Unions, employers, and employees may all file grievances alleging illegal behavior with the NLRB. The NLRA grants rights to employees in Section 7. Employers must be cautious that their handbooks do not violate Section 7 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 of 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]

In 2015, the Office of the General Counsel for the NLRB released guidance on employee handbooks in conjunction with a discussion of handbook rules from a recently settled unfair labor practice charge against Wendy’s International LLC. This guidance addressed a wide variety of rules including confidentiality, employee conduct towards the company and supervisors, conduct towards fellow employees, contact with third parties, use of company logos, copyrights and trademarks, photography and recording, leaving work, and conflict of interest rules. The NLRB provided examples of both approved and prohibited rules.

In Wendy’s case, the NLRB focused on a variety of areas including the social media policy that would chill the ability to participate in Section 7 activities. The NLRB concluded that while employers have an interest in ensuring that employee statements are not construed as representing the employer’s official positon, Wendy’s rule generally prohibited an employee from commenting on the business, policies or employees without authorization especially if it negatively reflected on Wendy’s. This direction was deemed too broad and the internal complaint mechanism chilled employee rights. Additionally, Wendy’s rule prohibiting the posting of photographs taken on Company premises without advance consent would also chill employees from engaging in activities such as “posting a photo of employees carrying picket sign in front of a restaurant. Further, prohibiting employees from blogging and anonymously commenting imposed an unwarranted burden on their rights.

On September 22, 2016, the NLRB commented on changes made by Northwestern University to the Northwestern University Football Handbook. The NLRB had not taken action against Northwestern because scholarship athletes are still deemed students and not employees. The NLRB reviewed the Football Handbook and determined that the rules would be unlawful as applied to employees until their recent modification. The Football Handbook previously included a social media policy that barred athletes from social media posts that “could embarrass you, your family, your team… or Northwestern University.” The Board stated that this provision “would reasonably be construed as prohibiting Section 7 activity.” The new policy now cautions students against specific behavior including posting “full or partial nudity, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity” and reminds them that they may be sanctioned if social media sites are used improperly or depict the described behavior. This more specific policy was approved by the NLRB.

Thus, employers may establish social media policies, but they must ensure that their policies do not violate the NLRA. Broad polices are more likely to be unlawful under the NLRA, whereas narrow policies prohibiting intolerable actions are more likely to comply. However, if you are concerned about the content of your policy, consult with an attorney specializing in employment law.