NLRB’s Third Report on Social Media Expands Reach of An Outdated NLRA

The National Labor Relations Board (“NLRB” or “Board”) recently issued administrative rulings on seven cases pertaining to employer policies governing employee use of social media, whereby it held that six of the seven policies violated the National Labor Relations Act (NLRA).  On May 30, 2012, the Board’s Acting General Counsel, Lafe Salomon, issued his third report on social media policies, and in that report he explained why the six policies violated the NLRA.  Unfortunately for employers, the rulings handed down in these cases as well as the Acting General Counsel’s report appear to be nothing more than another means of expanding the reach of an outdated National Labor Relations Act (“NLRA” or “Act”).

The NLRA was enacted in 1935, and governs the private sector employer/employee relationship by protecting employees’ rights to organize a union, engage in collective bargaining, and engage in other concerted activity for the purpose of influencing wages or working conditions.  It applies to union and non-union employers.  Under the Section 7 “concerted activity” provision, employees have the right to discuss their working conditions and the initiation of group actions with colleagues and third-parties.  However, the NLRA was written and enacted at a time when concerted activity generally encompassed a gathering of employees around the water cooler or in the break-room and not the sharing of information over the internet.  Despite the significant changes that have occurred in the way business is conducted and ways in which employees communicate with each other and outside parties, the NLRA has not been updated to reflect these changes.

The import of this is that, the Board has decided a series of cases regarding social media policies using a law that was written when social media did not exist, and has concluded that concerted activity now includes face-to-face encounters as well as encounters through social media such as Twitter, YouTube, or Facebook.  The effect of this decision, as highlighted by the Acting General Counsel’s report, is that it is now increasingly difficult for employers to regulate an employee’s use of social media. 

For instance according to the report, under Section 7 of the NLRA, when an employer’s policy is reasonably construed by employees to prohibit Section 7 activity, it is illegal.  In interpreting the NLRA, the Board took great liberty with this aspect of the law by holding that a company’s advisement to employees to not release confidential guest, team member, or company information on social networking sites was unlawful because employees would reasonably interpret this policy as prohibiting them from discussing and disclosing information regarding conditions of employment for themselves and colleagues- activities that are clearly protected under Section 7. 

Of course, any good company lawyer would say there is an easy fix for this issue – simply add a clause that states the policy is administered in accordance with the NLRA and does not infringe upon Section 7 rights.  While that makes logical sense to most of us, the Board determined that such “saving clauses” do not cure overbroad polices.  Of course the NLRB neglected to provide guidance as to why that is the case.

Even a policy that instructs employees not to reveal non-public information such as financial performance of the company, information that has not already been disclosed by authorized persons in a public forum, and personal information such as compensation of other employees was found to be unlawful.  So, according to the NLRB, an employee could post secret information about a company’s product line, causing the company to lose its competitive edge, or could post inaccurate information about a company’s financial performance, causing stock prices to plummet, and this is perfectly okay because the employee’s ability to engage in concerted activity was not restricted. 

Considering the prevalence of social media in our society, this is an issue that will increasingly go before the Board.  While NLRB decisions can be appealed to federal courts, the Board will rely upon these decisions as precedent in deciding social media cases that come before it until a court rules otherwise.  However, even if a court rules on this issue, the ruling will be binding only on employers in that particular circuit, and we could have a myriad of conflicting decisions.  

The social media decisions handed down by the Board give employees carte blanche to give away company secretes to the public at-large, which endangers our economy, and also jeopardizes employee privacy rights by permitting confidential employee information to be distributed to millions of people.  While the ability to engage in concerted activity is an important right, it should not jeopardize an employee’s privacy rights.  Additionally, there should be a balancing of employee rights and an employer’s ability to protect itself through employment policies.  The social media issue calls in to question the relevancy of the NLRA, now a 77 year-old law.  Given the economic and social changes that have occurred within our society since its enactment in 1935, perhaps for the sake of employers and employees alike, it is time for Congress to update the NLRA to better protect both parties in the wake of changing economic and social forces.

To read the full NLRB report, click here.  

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