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NLRB Decision Protects Ability of Employees to Use Social Media at Work

A recent NLRB decision struck down a clause in an employer’s
social media policy that prevented employees from using social media on company
time
. In the case, the employee challenged two provisions of the company’s
employee handbook. The first, which we have seen before, prohibited employees
from making disparaging comments about the company. The second prohibited
employees from using social media sites while at work. The employee in the case
argued that these prohibitions interfered with his NLRA Section 7 rights- the
provision that protects “concerted activity,” unionized activity, and
communications made for the purposes of improving workplace conditions.

The NLRB ALJ assigned to the case struck down both
provisions. As we have seen before, the test centered around whether an
employee would see the company’s social media policy as chilling union or
concerted activities. Specifically the test is whether an employee’s Section 7
rights would suffer a “reduction or inhibition” because of the policies in
question.

As we saw in the car dealership case, the NLRB struck down
the disparaging comment provision on the usual grounds. With respect to the
social media on company time clause, the NLRB did not provide much guidance.
The NLRB general counsel had argued that the policy could be interpreted by
employees as preventing social media use during breaks and at lunch, and presumably
the ALJ followed that reasoning. In general, the NLRB is skeptical of the
description “company time” because it is overbroad and does not provide
employees with specific boundaries and requirements.

In general, employers increasingly need to be
careful with regards to their social media policies. The NLRB has recently taken
a much more active role in monitoring social media policies in employee
handbooks. Employers who have questions about social media guidelines should
consult an attorney. In addition, firing employees based on social media posts
has been subject to recent scrutiny, making this an area of employment law
where employers and employees should proceed with caution.