As discussed in an earlier blog post, conflict between retail employers and their employees over the use of social media platforms such as Facebook and Twitter is increasingly common. Although retail employers are well-advised to adopt social media policies to set clear expectations for their employees, these policies can become legal traps for the uninformed employer.
Employee Protections under the National Labor Relations Act
The National Labor Relations Board (NLRB) is the federal agency tasked with implementing the National Labor Relations Act. As the name implies, the origins of the Act and the NLRB lie in protecting organized labor and unions. However the Act protects even non-union employees in certain circumstances, specifically when they are engaged in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB has interpreted “concerted activities” to include activities such as employees discussing their pay or working conditions. In the digital age, Twitter or Facebook are the modern water cooler, providing retail employees with an electronic forum to discuss conditions of their employment.
The National Labor Relations Board’s Interpretation of Social Media Policies
As mentioned in a recent article in the Boston Business Journal, the NLRB recently released a set of guidelines for employers to follow in crafting social media policies. Those guidelines were published on the NLRB website on May 30, 2012.
The guidelines are drafted with attention to actual social media policies the NLRB concluded were unlawful. For example, the guidelines include analysis of a national retail chain’s social media policy, contained in its employee handbook. This national retailer included a broad provision in its social media policy prohibiting employees from posting confidential information on social media platforms or sharing confidential information in public areas. The NLRB found this provision to be an unlawful restriction on employees’ rights, because the retailer did not specifically exempt its employees’ right to engage in concerted activities, and because the policy banned discussion of confidential information in the break room, open areas, or at home – all areas where employees typically gather to engage in concerted activities.
In contrast, the guidelines present another national retail chain’s revised social media policy, which the NLRB found to be entirely lawful. In that case, the retailer specifically identified the various types of confidential information employees should not post or blog about, such as trade secrets and internal reports. The NLRB found that, because the retailer specifically identified the type of confidential information employees should not discuss on social media platforms, employees could not reasonably interpret the policy to ban concerted activities.
Retail employers should draft their social media policies carefully so as to avoid raising issues under the National Labor Relations Act. In particular, retail employers should expressly exempt any concerted activities from the restrictions in their social media policies, rather than simply stating that the policies apply “except as prohibited by applicable law.” So long as retailers allow their employees to communicate with each other via social media regarding pay and other working conditions, they should be able to protect themselves and their brands while respecting the rights of their employees.