Mar 05, 2021

Restrictions on Employee Social Media

By: Marissa Cerkoney

On January 4, 2021, the National Labor Relations Board (NLRB) held in a 2-1 decision that an employer’s policies restricting certain types of employee communications on social media were lawful under the National Labor Relations Act (NLRA). The NLRB found that an employer may enforce provisions prohibiting employees from engaging certain acts on social media. Specifically, the NLRB found that the following were lawful:

• A policy prohibiting employees from “inappropriate communications” on social media.
• A policy prohibiting employees from disclosing confidential or proprietary information regarding the company or coworkers. The NLRB found that this was not an unlawful restriction on employees because the policy included that this prohibition was “limited to the use of copyrighted or trademarked information, trade secrets, or other company information.”
• A policy prohibiting employees from using the company name to endorse, denigrate, or otherwise comment on a person, product, cause, or opinion.
• A policy prohibiting employees from using photos of coworkers without their express consent.
• A policy prohibiting employees from sharing employee compensation information.
• A policy prohibiting employees from using social media to disparage the company or others.

In reaching its decision, the NLRB assessed the legality of employer policies by applying a balancing test that analyzes whether an employer’s workplace policy interferes with its employees’ protected activity under Section 7 of the NLRA. The first step is determining whether the workplace policy at issue reasonably interferes with an employee's right to participate in Section 7 activity. If the policy does interfere with an employee's ability to engage in Section 7 activity, then the second step is determining the employer's legitimate justifications for the rule, and then balancing those justifications against the nature and extent of the interference with Section 7 activity to determine whether the workplace rule is lawful. This test provides for more discretion in analyzing workplace policies and has resulted in more employer-friendly rulings from the NLRB.

The Takeaway:

The NLRB’s decision may allow employers to institute social media policies that, to some extent, limit what their employees publicly post on social media about the employer, so long as the policy is designed to protect the employer’s public image. Social media policies must be fashioned and worded in a way that can be readily understood by reasonable employees, must address legitimate company interests, and not interfere with employee rights. Employers should seek the help of legal counsel to develop social media policies.

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Reprinted with permission from an article submitted for publication in the March, 2021 Southwest Area Human Resource Association newsletter.