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Labor: 7 takeaways for employers from the NLRB’s social media report

Report also offers best practices for employees

The NLRB recently issued its second report regarding social media policies. This report focuses on 14 recent cases decided by the NLRB. The cases dealt either with social media policies maintained by employers or discharges of employees after the employees posted comments to Facebook.

Employers should take note that the NLRB will most likely find social media policies unlawfully broad when they include the following employee prohibitions:

  • Making disparaging comments about the company through any media, including online blogs, other electronic media or through any media
  • Identifying oneself as the employer’s employee unless discussing terms and conditions of employment in an appropriate manner
  • Using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with the employer’s mission or unprofessional/inappropriate communication regarding members of the employer’s community
  • Disclosing or communicating information in a confidential, sensitive or non-public nature concerning the company without prior approval.
  • Using the company’s name outside the course of business without prior approval
  • Publishing any representation about the company without prior approval
  • Failing to obtain approval from the company prior to identifying as an employee of the company on social networking sites

While some employers have attempted to save overly broad or ambiguous social media policies by including a savings clause that carves out communications protected by the National Labor Relations Act, the report makes clear that the presence of a savings clause will not, by itself, prevent the NLRB from finding the social media policy unlawful.

Employees also should take note that while the NLRB may find that an employer’s social media policy is unlawfully broad, that finding may not preclude the employee’s termination. Employees should avoid the following:

  • Making comments that would not be considered concerted activities on behalf of a group of employees
  • Making comments that are merely an expression of an individual gripe
  • Making comments expressing personal anger with co-workers and the employer
  • Making negative or threatening comments about co-workers

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R. Anthony Prather

R. Anthony Prather is a partner in the Indianapolis office of Barnes & Thornburg LLP and a member of the firm's national Labor and Employment...

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