The NLRB Is Watching Your Social Media Policy — Whether You Have a Union or Not

July 10, 2016

Topics: Unions and the NLRB

Although you may not realize it, the National Labor Relations Board (NLRB), which is usually thought of as protecting the rights of union workers in the U.S., also has the ability to reach into non-unionized workplaces.  Most recently, the NLRB has been scrutinizing company Social Media Policies and routinely finding that they violate the National Labor Relations Act (NLRA) section 7.

Section 7 provides protections for all U.S. employees, without regard to whether they are currently members of unions, or whether those activities are directly related to union activity.   It provides that employees “shall have the right to . . . engage in other concerted activities for the purpose of . . . other mutual aid or protection.” (29 U.S.C. § 157.)  When an employer attempts to stifle employee speech in whatever forum, the concern has always been whether those restrictions would run afoul of this section of the NLRA.

Before the social media age, the concern often focused on employers’ prohibitions against employees discussing salaries amongst themselves.  Employers would have policies stating that there are many reasons why salaries are set the way they are, and such decisions are at the company’s discretion, so don’t discuss your compensation with your co-workers.  However, employee discussions about their compensation were routinely found by the NLRB to be concerted (meaning “performed together or in cooperation”) activities having the purpose of “mutual aid” (in other words – employees discussing salaries to see if they were being under paid).  Therefore, policies that prohibited such discussions violated the NLRA—whether the employer had a unionized workforce or not.

One employee complaining that his or her salary is too low is not engaging in concerted activity.  However, one employee complaining that “our” salaries are too low—or several employees who determined amongst them that their salaries are too low—are engaging in concerted activity protected by the NLRA.

In this electronic age, employee conversations about the terms and conditions of employment go far beyond discussions across cubicle walls.  Employees set up Facebook pages expressly to gripe about their conditions at work.  Employees in distant offices of the same company can compare benefits and working conditions.  Because of the NLRA’s protections, however, Employers need to take care that their Social Media policies which regulate employee on line activities and communications don’t now run afoul of the NLRA.

While one might argue that the NLRB is overreaching and is improperly subjecting companies and managers to ridicule and even potential defamation, one needs to keep in mind the era in which the NLRB “grew up” and the labor/management relations that existed at that time.  It is possible that the mechanisms of the NLRA no longer align with a modern workplace—but that’s something to be considered by Congress.  In the meanwhile, employers should review their Social Medial Policies (and other policies restricting employee speech) to make sure that they permit employees to communicate with each other about their terms and conditions of employment, and that employees are not disciplined or terminated for having such conversations.  Otherwise, the company may well feel the wrath of the NLRB.