As social media such as Facebook and Twitter become more popular, so do policy directives of employers that try to curb employees’ activities. In a recently issued memo, the acting general counsel of the National Labor Relations Board voiced disapproval for several specific policies, arguing that they run afoul of labor law. The National Labor Relations Act guarantees workers certain rights, including the right to engage in concerted activities for mutual aid or protection. So, for example, an employee has the right to converse with other employees concerning the terms and conditions of their employments.
In an attempt to catch a wide array of activities that they perceive to be harmful, companies often draft social-media policies in an extremely broad manner — too broad in the mind of the acting general counsel. Policies admonishing employees to refrain from discussing confidential information, for example, in the opinion of the acting general counsel, are prohibited, as employees could reasonably construe such a policy as prohibiting them from discussing the terms and conditions of their employment.
Other policies considered problematic include instructing employees to ask a superior before posting questionable content, and prohibiting an employee from “friending” coworkers. Employers cannot require employees to gain permission before engaging in protected activities, and preventing “friending” would discourage communications, thus necessarily interfering with protected activity.
The moral of the story for employers is relatively simple: when drafting policies or handing out punishment for social-media activity, employers should pay attention to the National Labor Relations Act and follow its provisions. If you need additional information on this subject, contact Brad Smelser, a lawyer in our firm, at 800-898-2034 or by email at Brad.Smelser@beasleyallen.com.
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