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In recent years, the National Labor Relations Board (NLRB) has closely examined employee discipline related to conduct over social media to ensure that employers do not infringe on employees’ rights under the National Labor Relations Act (NLRA). To minimize the risk of NLRB scrutiny, you should counsel the employer to consider the following issues before they undertake such discipline.
(1) Does the Policy Comply with the NLRA? If the discipline arises from a violation of a social media policy, review the policy to make sure you are comfortable that the policy does not run afoul of the NLRA as presently interpreted by the NLRB. First, focus on the section of the policy that the employee has violated. Then, study the policy as a whole. You should consider the questions below.
(a) Does the policy use sufficiently specific language to describe prohibited social media activity such that it informs the employee of what the employer does and does not allow? For example, do the policy provisions that forbid certain conduct refer to specific laws/regulations or other company policies that employees should not violate with their social media posts?
(b) Do any of the restrictions have the potential to place undue burdens on employees or tend to chill their exercise of the right to engage in concerted activity by, for example:
(i) requiring that every post relating to the employer contain a disclaimer that the post does not represent the position or opinion of the employer;
(ii) banning all disparaging comments regarding the workplace, or supervisors, coworkers, salaries, or working conditions; or
(iii) prohibiting conduct that is generally offensive, discourteous, or rude, or requiring respect in general terms without providing specific limitations?
(c) You should consider whether the policy contains a savings clause that the policy will not be construed to interfere or restrict employees’ rights under the NLRA. This language alone will not render an otherwise illegal policy provision legal. It may, however, increase the likelihood of enforcement by informing employees that the policy generally would not apply to protected concerted activities.
(2) Did the Employee Engage in Protected Concerted Activity? Regardless of whether the discipline arises from a violation of a social media policy, you should consider the following points to minimize the risk of an NLRB challenge:
(a) Can the employee claim the post constitutes concerted activity rather than a personal gripe (i.e., the employee must have taken the action together with or on the authority of other employees and not solely by and on behalf of the employee himself or herself); and
(b) Does the NLRA protect the action that may be construed as concerted activity? Concerted activity can lose the NLRA’s protection if
(i) it is maliciously untrue and made with the knowledge that it was false, or
(ii) it is egregious.
(3) Does the Discipline Otherwise Pass Muster? Whenever you evaluate the risks of disciplining an employee, you should carefully consider all of the potential legal risks and make sure that the employer adheres to its own practices and policies. Specifically:
(a) Carefully review the evidence and documentation of the employee’s offense.
(b) Consider how the employer has treated others who have engaged in similar behavior.
(c) The employer should communicate clearly with the employee and keep records of the communications.
(d) Counsel the employer to comply with applicable employment laws and its own disciplinary procedures.
If you found the above information to be helpful, you may also be interested in the following LexTalk post – Social Media and Employment Contracts, providing transactional documents to attorneys who want to learn more about social media and employment contracts. View the post >>
The above Checklist is Provided for Use by: Marcia E. Goodman and Lori Zahalka, Mayer Brown LLP