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Summary:

The National Labor Relations Board has bad news for employers that want to restrict their employees’ speech rights on social media. Employers can either update their policies to allow for the same types of speech the NLRA allows elsewhere, or they can find themselves in court.

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The National Labor Relations Board has bad news for employers that want to heavily restrict their employees’ speech on social media. Employers can either update their policies to allow for the same types of speech that the National Labor Relations Act allows elsewhere, or they can find themselves facing lawsuits under the act. It’s about time, but the delay in applying the NLRA to social media isn’t surprising given the heavy hand with which many institutions try to control social media use.

The NLRB report actually came out in late January, but it’s experiencing a wave of attention now because employers and social media have been in the news. In late March, the NLRB brought an action against a New York grocery store chain for its policy that prohibited employees from discussing their salaries and other like information on social media, and that required employees to inform store management if co-workers violated the policy.

Last week, Maryland passed a bill a that prohibits employers from asking for employees’ or potential employees’ social media passwords. That’s an increasingly common practice that the NLRB doesn’t address in its report, but that has caught the attention of Congress.

It’s a somewhat backward way of thinking — that different rules apply to social media than to other forms of communication — but employers aren’t alone in thinking it. Last month, I wrote about how some judges are taking hard-lines stances on social media use among jury members. The problem all around is the view that rights somehow diminish when we’re talking about anything other than one-on-one verbal communications. They don’t.

The medium might have changed, but the activity is pretty much the same. This is especially true if we’re talking about social media accounts that are set to private and therefore not visible to the general web. Direct messaging someone on Twitter or Facebook, I’d argue, is the equivalent of calling someone on the phone or sending a text message. Updating your status or tweeting is about the same as saying something to a group of friends over drinks. People talk, often times about their jobs, and it’s not up to employers to decide how they do it.

That being said, discretion probably is the better part of valor when it comes to actually using social media, something some people still don’t seem to get. Our rights might not be narrowed just because we’re using social media (unless, of course, the Justice Department wants some warrantless data on us), but they’re not somehow expanded either.

The NLRA addresses workers’ rights, but doesn’t protect anything employees might want to say on social media, especially insults and other statements that don’t have a purpose other than venting about a co-worker. Talking about violations you committed at work, or using Facebook while supposedly out sick, probably not good ideas, either. Drunk photos, well … And, let’s be honest, even if someone can’t be fired because of a particular post, that post certainly might lead a boss to look for another reason to drop the axe.

Image courtesy of Everybody loves Eric Raymond.

  1. Basic rule of earning an income: Dont $*it where you eat.

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  2. While this article is correct where private lives and work are concerned, the point about judges is wrong.

    For some reason people seem to forget that rules prohibiting communication while on a jury also included twitter and facebook. Judges are right to remind these people that just as they are not allowed to talk about the case on the phone, or with others they can not tweet or update about it either.

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    1. Derrick Harris Tuesday, April 17, 2012

      Remind, yes. Demand passwords or data, no. The point is that people always talk, even when they’re not supposed to, but we don’t bug jurors or tap their phones.

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  3. While I agree with the wisdom of Steve K comment, I do consider conversations on Facebook to be private unless explicitly made public. Snooping on private conversations on Facebook or Twitter is not that different from wire tapping. No executive would consider wire taping to be an acceptable way to manage employee communications. Why should different logic apply to other private communications such as those occurring on social networks.

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  4. Hi Derrick: Thanks for keeping us up to date on legal developments in social media. Hey, one footnote your readers might find useful: decisions of the NLRB, which are based on the NLRA, the body of Federal law it administers, only affect certain types of unionized employees in the US. Thus unionized auto workers are affected, for example, but not Firefighters and other public safety employees, who typically fall under state labor laws. NLRB rulings also have no influence on the laws affecting non-union employees, which is close to 90% of the workforce these days. So I like your insight—it’s about time legal is catching up to the rest of us—but the NLRB’s policy itself isn’t going to affect most people directly.

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    1. Derrick Harris Wednesday, April 18, 2012

      Actually, this policy covers non-union employees, too, per Section VII of the NLRA: http://www.ballardspahr.com/alertspublications/legalalerts/2012-03-29_nlrb_to_launch_website_on_nonunion_worker_rights.aspx.

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      1. You’re absolutely right, I stand corrected. I should have said the NLRB’s rules will impact only unionized and unionizable employees. This excludes supervisors and managers, government, agricultural, railroad, airline, and domestic employees, and independent contractors, over whom the NLRB doesn’t have jurisdiction. For everybody else, when employees are engaging with other employees “in concerted activity for the purpose of collective bargaining or for other mutual aid and protection” (usually this means they’re talking about forming a union), these conversations can’t be “chilled” by their employer. So absolutely, for lots of employees who aren’t necessarily already unionized, but could be, and who are talking with other employees about work conditions using social media, this is relevant.

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