Contact: Steve Runyan
Are you thinking about adopting a company-wide social media policy? Be careful what you prohibit. A client recently asked if the company could prohibit employees from discussing the company on social media. The client wanted to avoid negative publicity from disgruntled employees and thought a change to the employment manual would be helpful. The First Amendment guarantees freedom of speech, but only prevents government restrictions on speech, it does not relate to private actions. Consequently, clients often think that they are free to limit employees’ speech. But the National Labor Relations Board (“NLRB”) has held that restrictions that “chill” speech are unlawful (and actionable). Therefore, an employer must be careful when crafting restrictions to avoid unlawful restrictions.
Social Media Policies Cannot “Chill” Speech Protected by the National Labor Relations Act
The NLRB’s many decisions on this issue center around two sections of the National Labor Relations Act (“NLRA” the “Act”) (codified at 29 U.S.C. §§ 151-169). First, Section 7 of the Act (29 U.S.C. §§ 157) provides that employees “have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for … mutual aid or protection.” Second, Section 8 of the Act (29 U.S.C. §§ 158) prohibits any action by an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”
Over time, Section 8 has been applied to prohibit not only explicit restrictions on protected activities, but also to prohibit restrictions that (1) employees would reasonably construe to prohibit Section 7 activity; (2) that were promulgated in response to union activity; or (3) have been applied to restrict the exercise of Section 7 rights. Three D, LLC v. N.L.R.B., 629 Fed.Appx. 33, 38 (2nd Cir. 2015).
For employers, the difficulty comes in determining whether a proposed restriction violates the first clause—whether employees would reasonably construe the restriction to prohibit Section 7 activity. If a rule is ambiguous and does not clarify that it does not restrict Section 7 rights, then the rule is unlawful. Importantly, how employees interpret ambiguous restrictions is not dispositive. Instead, the NLRB considers only whether an employee could reasonably construe the restriction as prohibiting Section 7 activity. See Flex Frac Logistics, L.L.C. v. N.L.R.B., 746 F.3d 205, 209 (5th Cir. 2014); Three D, LLC v. N.L.R.B., 629 Fed.Appx. 33, 38 (2nd Cir. 2015).
Examples of Unlawful Restrictions
A few examples may be helpful.
