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Social Media and Employees

Tue February 5, 2013 Publications

Businesses must ensure that restrictions against their employees’ use of social media like LinkedIn, facebook, and twitter, does not unlawfully infringe on the employees’ right to engage in protected, concerted activity to improve their working conditions.

The National Labor Relations Act (NLRA), Section 7, provides all employees, unionized or not, a right to engage in concerted activity for mutual aid and protection. Section 8(a)(1) of the NLRA provides that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7 of the NLRA.

Employer social media policies may violate the NLRA if they explicitly restrict Section 7 activities, or if the policy is overbroad such that a reasonable employee would interpret the provisions as prohibiting discussion of Section 7 activities. These Section 7 activities include wages, benefits, or working conditions.

The NLRA has found overly broad policies to include policies that warn employees to not friend co-workers, not post inflammatory or objectionable topics, not disclose personal information about co-workers, not disparage or defame the company, its customers, or its employees, and post only completely accurate and not misleading information.

However, a social media policy that prohibits “inappropriate postings”, as long as the policy provides clear guidance on the nature of the inappropriate postings, is permissible. Inappropriate postings can include threats of violence, discriminatory or harassing comments, and similar inappropriate or unlawful conduct.