The National Labor Relations Act (NLRA) dates back to the mid-1930s when the U.S. was a more heavily industrialized country and unions represented approximately one-third of the workforce. With union membership now hovering around 12%, we don’t typically hear much about the NLRA and the independent federal agency, the National Labor Relations Board created by the NLRB. However, recently the NLRB brought the NLRA into the modern world of Twitter and Facebook when it accused a company, American Medical Response of Connecticut Inc. (AMR) of violating Section 7 when it terminated an employee for allegedly criticizing her boss on Facebook.
AMR’s social media policy prohibited employees from making disparaging, discriminatory or defamatory comments about the company or its employees. In the complaint against AMR, the union argued that the company had been interfering with, restraining and coercing employees in exercising their protected rights under Section 7 of the NLRA. Section 7 of the NLRA protects “concerted activities,” which include circumstances where employees seek to “initiate or induce” group action for “mutual aid or protection.” In today’s workplace, activities such as blogging, or posting messages on social networking websites, can be considered concerted activity, and unless the activity falls within one of the exceptions to the NLRA’s protections (e.g., confidentiality breaches, extreme disloyalty, etc.), the law limits an employer’s control over what employees may write and post.
The parties reached a settlement before the trial began, and required AMR to clarify and narrow its policy. Based on this, it is no longer a good idea to have a social media policy that prohibits individuals from identifying themselves as employees of the employer; prohibits employees from making comments regarding their employment, including disparaging comments; and prohibits employees from discussing the terms and conditions of their employment. However, post-NLRB v. AMR, here are a few things your revised social media policy should include: (1) The policy should define its scope, explaining that it includes all Internet-based communications, including — but not limited to — personal blogs, message boards, microblogging sites such as Twitter, social networking sites such as Facebook, MySpace and LinkedIn as well as other websites and “chat” forums; (2) The policy should remind employees, per new FTC guidelines on use of endorsements and testimonials, of their obligation to disclose that they are an employee of their employer whenever they communicate information about the employer. When employees identify themselves in this manner, they should be encouraged to make it clear that the comments reflect their own thoughts and opinions and not those of their employer; (3) The policy should remind employees that they are prohibited from disclosing the employer’s confidential information or its customers’ private information. In addition, it should also remind employees that they are prohibited from disclosing trade secrets, copyrighted or trademarked information; (4) The policy should inform employees that they may discuss their wages and other terms and conditions of employment; (5) The Policy should caution employees that online comments not only reflect upon the employer but also upon the employee, individually, and his or her coworkers. As such, employers may ask that employees carefully consider what they say in any social media forum and how those statements may impact others; and (6) A disclaimer that states the company understand and respects every employee’s NLRA protections.
In addition to the needed changes to the social media policy, any discipline policy within an employee handbook that threatens discharge or discipline for the use of social media to communicate regarding an employee’s work may also create problems and needs review. 06-30-2011. HRM Partners.