In 1935, desperate to find a way to fairly and efficiently resolve labor disputes, Senator Robert F. Wagner of New York introduced a bill in Congress. The bill, soon to become known as the Wagner Act, was signed into law in July of that year. The Wagner Act created the National Labor Relations Board (NLRB), an independent federal agency that still exists today. One of the original purposes of the NLRB was to be an enforcement mechanism for protecting certain employee rights, such as the discussion of wages and the right to join a union.
The NLRB made sense in the 1930’s. In 1933, this country had approximately three million union members and working conditions were a far cry from current standards. A federal agency was necessary to protect employees who had fallen victim to unfair labor practices and to help facilitate cooperation between labor unions and employers. By aggregating individuals into a union, the union could bargain more effectively with employers regarding the terms and conditions of employment. But, when we fast forward to 2013, it does not take a well-trained eye to notice that labor unions do not have the prominence in our country that they once did. Union membership has been on the decline for decades. In fact, North Carolina has one of the lowest numbers of union members in the country.
Has the NLRB and its mission become obsolete? Far from it. In a crafty move, the NLRB has decided to shift its focus away from labor unions to a different type of emphasis: social media and electronic platforms. The NLRB is now focused on non-unionized workplaces, which, for the most part rarely give the National Labor Relations Act (NLRA) a second thought. However, these non-unionized workplaces are subject to Section Seven of the National Labor Relations Act (commonly referred to as “NLRA Section 7 Rights”). This section forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining, or assisting a labor organization for collective bargaining purposes or from working together to improve terms and conditions of employment. 29 U.S.C. § 151, et seq. In other words, the NLRA protects employees’ rights to act together, with or without the help of a union, to improve working conditions, including wages and benefits. This is known as protected concerted activity. The NLRB has now seen fit to include certain types of online activity into the category of concerted activity. The NLRB is focusing heavily on non-unionized workplaces in enforcing Section 7 rights of employees to engage in protected, concerted activity, particularly on electronic and social media platforms.
In previous decades, employees may have discussed poor working conditions or low wages in a physical working space such as a break room or factory floor. Now, an employee may choose to post a negative comment about his or her boss on Facebook or Twitter. Or, an employee may utilize the company email server to send an email to the entire staff, complaining about a new vacation policy. In an attempt to control the use of social media by employees, many companies have created social media policies that typically enumerate comprehensive rules and regulations regarding what is or is not allowed to be posted on social media platforms. A common rule in most social media policies is to prohibit employees from making disparaging comments about fellow employees or supervisors on a social media platform. These policies may apply to use of social media in the workplace, or even the employee’s own social media platform such as Facebook.
When employees began losing their jobs for violating their company’s social media policies, the NLRB took notice and began to investigate. Within the last two years, the NLRB has made it clear that a certain kind of language in policies is unlawful, as it could have a chilling effect on protected concerted activity.
In a statement on the NLRB website, the agency has reiterated its new commitment to policing this 21st century arena of activity: “The National Labor Relations Act protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter.” The NLRB’s website practically invites workers to file Section 7 charges and gives a blueprint for workers to do so.
With this expansion of the NLRB’s power, many companies now have to be cautious when drafting social media policies if they want to avoid costly litigation. Policies need to be worded in such a way that the company’s interests are promoted, while at the same time, the policy does not suppress an employee’s federally protected rights. This is admittedly a very fine line. Decisions handed down from the NLRB General Counsel are only somewhat helpful, as they are inconsistent. The best course of action for an employer who is attempting to create or modify a social media policy is to become familiar with previous NLRB decisions – what they like, what they do not like – and craft a policy that both protects the employer and the employee.
For example, the NLRB has found the following language in social media policies to be unlawful:
- “If you engage in a discussion related to [employer] . . . you must be sure that your posts are completely accurate and not misleading.” This regulation was considered unlawful because an employee may be afraid to discuss or criticize an employer’s labor policies or its treatment of employees. The NLRB also found this to be overbroad.
- “Don’t use the company’s logo or trademarks.” Similarly, the NLRB found this language to be unlawful because an employee’s non-commercial use of an employer’s logo or trademark could rightly be used on a picket sign or in a rant about wages, hours and working conditions on a social media site, which according to the NLRB, outweighed an employer’s proprietary interests in its own trademarks.
- “Adopt a friendly tone when engaging online. Don’t pick fights.” This rule was considered unlawful, as heated or controversial conversations – while unpleasant – may lead to discussions about working conditions or the formation of unions.
- “Don’t release confidential . . . company information.” According to the NLRB, this language was unlawful on the grounds that it was overbroad and could be construed as prohibiting employees from discussing terms and conditions of employment. It is worth noting that this does not in any way change or abrogate trade secrets law, and that specifying the prohibition as applying to business information may be helpful.
While only a few examples are listed here, dozens more are available for viewing on the NLRB’s website. Law firms, like all companies, are faced with the challenge of keeping up with the latest technological trends. However, they must also comply with the law, something that arguably changes as fast as the technology around us. From the employment lawyer to the employee tasked with creating or modifying a relevant social media policy, the NLRB has plenty to say. It is unlikely that social media or the law governing its use will stop evolving, and we must be vigilant in monitoring the evolution of both.