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Tag Archives: National Labor Relations Act (NLRA)
The United States Office of the General Counsel, Division of Operations-Management has Released a Report that Provides Guidance on Workplace Rules Governing Social Media Sites such as Facebook under the National Labor Relations Act
Due to the rapid rise of social media sites involved in the workplace such as Facebook, the United States Office of the General Counsel, Division of Operations-Management has promulgated its third report in the past year regarding workplace rules on using social media technology pursuant to the National Labor Relations Act (NLRA). As this blog has noted before, the use of social media sites in the workplace has expanded creating issues for employers and employees alike. In an effort to manage these employment issues relating to social media, many employers have implemented rules to control the use of these sites and reduce any potential legal exposure. This recent report provides guidance on how to structure rules that impact usage of social media sites at work.
Generally, workplace rules regarding social media use cannot restrict or infringe upon activity protected under the NLRA. Protected activity includes discussions regarding wages and conditions of employment with third parties as well as each other. The report provides this example as overbroad: “Don’t release confidential, guest, team member or company information.” An employee could reasonably interpret this rule as preventing a discussion of workplace conditions and is therefore unlawful. Similarly a policy that prevents employees from discussing any confidential workplace information is unlawful because it prevents employees from engaging in activity protected by the NLRA. Furthermore a policy working in tandem with the above policy that requires an employee to report that confidential communications were made is unlawful because those confidential communications could regard workplace conditions or wages. On the other hand, a policy that advises employees to be careful about divulging confidential information is lawful.
In another exemplary policy, the phrase requiring that posts are “completely accurate and not misleading and that they do not reveal non-public information on any public sit” was unlawful. Discussions regarding workplace conditions and wages are protected and would potentially be restricted under this policy. Moreover, any policy that forces employees to obtain permission to post any materials is facially unlawful. Notably, a policy preventing the disclosure of secret or confidential information is lawful as long as it is “to protect the Employer’s legitimate interest in safeguarding its confidential proprietary and privileged information.”
It is also unlawful to restrict or discourage employees from friending each other as it would restrict their protected activity under the NLRA.
The report presents a policy restricting the use of social media in the workplace that is lawful under the NLRA. In the policy itself, there are examples of acceptable and unacceptable activity to reduce the risk of ambiguity that could restrict NLRA protected activity. It appears likely that all of the unlawful policies referenced in the report could be remedied through guiding examples that reflect how the policies do not infringe on NLRA protected activity.
If you are an employee and believe your workplace rules regarding social media sites such as Facebook infringe on your protected labor activities or you are an employer seeking guidance on writing your social media guidelines and you would like to speak to an employment attorney, please contact Swartz Swidler, LLC for a free consultation at (856) 685-7420. You may also contact us through our website.