By Philip Schwartz
Section 7 of the Nation Labor Relations Act (“NLRA”) prohibits employers from engaging in any conduct which may restrict an employee’s right to act in concert with other employees to discuss or seek changes to workplace conditions and terms of employment, including wages, working hours and benefits. While many mistakenly believe that the NLRA only applies to employers with unionized workforces, in fact, it is applicable to almost all employers, regardless of whether there s a union presence. The NLRA is enforced by the National Labor Relations Board (“NLRB”).
While the NLRB has traditionally protected Section 7 rights by ensuring that employees could meet separately (i.e., water cooler discussions) and with the employer to discuss work place terms and conditions of employment, the NLRB has now focused on work place social media policies to ensure that employees are provided the freedom to discuss and air workplace issues through social media. Costco recently found itself defending an NLRB claim that its policy prohibiting employees from making statements on social media sites such as Facebook and Twitter that “damage the company, defame any individuals or damage a person’s reputation” violated Section 7 of the NLRA. The NLRB prevailed in showing that Costco’s social media policy infringed its employee’s right to band together to improve working conditions. Costco’s social media policy was held to have a “chilling effect” on employees’ aility to protest working conditions.
While the employers cannot prevent its employees from airing workplace grievances over social media, the employer is still permitted to have a policy prohibiting employees from disclosing confidential or propriety information in electronic or other media. Similarly, employers can also prohibit employees from posting vulgar or obscene language and harassing, discriminatory or intimidating materials. Employers, however, may not adapt generic social media policies–such as general public policies prohibiting disparagement of the employer or management–as these policies will almost always be deemed overly broad and unlawful.