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New NLRB Guidelines for Social Media in the Workplace

New NLRB Guidelines for Social Media in the Workplace

By: Melanie Berkowitz, Esq.

You may think you are ahead of the game if you have already drafted a social media policy that regulates social media in the workplace. After all, you are just protecting your investment and your business’s good name if you forbid employees from bad-mouthing their jobs on their Facebook pages or prohibit them from Tweeting about their latest compensation plan, right?

Not so fast.

According to the National Labor Relations Board (NLRB), employers’ attempts to control or limit what employees post on social media websites and their personal accounts often violate the employees’ rights to engage in “protected” activity under the National Labor Relations Act

The NLRA protects employees who band together to try to make changes to their employment conditions, even if all they wish to do is complain as a group. 

The so-called “Facebook Firings” caused particular concern to the NLRB, which immediately stepped in to warn employers that in many cases, workers had the right to say negative things about their jobs in public forums without risk.  

June saw the issue of a series of NLRB guidelines urging employers to use specificity and provide examples when instructing employees about appropriate social media use; it’s not just a question of being able to discipline employees for their postings — employers’ written policies can get them in trouble even if they have not yet been applied. 

For instance the NLRB ruling said that Costco’s employee handbook contained a number of policies that had the potential to stifle employees’ rights to free speech and restrict their rights under the NLRA. 

What do the NLRB guidelines and its recent Costco decision have to say about social media?  Take a look at your employee handbook and talk to an employment lawyer to insure that you follow these recommendations:

  • Avoid general, blanket prohibitions on any employee actions with respect to social media. This includes banning employees from talking about their job, complaining about their boss or co-workers or disparaging company policies, among others. 
  • Instead of generally banning employees from revealing confidential company information or trade secrets, be specific about what employees may not reveal. While it may be okay to protect trade secrets, formulas, customer lists and technological data, the NLRB has found that employees may have the right to discuss certain aspects of their confidential employment situation (such as salaries or bonuses) via social media.  
  • Give employees specific examples of inappropriate postings. Acceptable limits include prohibitions on bullying, discrimination and retaliation. Talk to a lawyer before disciplining an employee for defaming or otherwise lying about the company via social media.
  • Do not restrict employees’ ability to “friend” co-workers on their personal social media pages.  
  • Unless you have a legitimate and defensible business purpose as part of your social media guidelines, do not ask employees (or worse, applicants) for their social media account information or passwords.  
  • Be consistent in how and when you review the social media accounts for prospective employees. 

Read more: Employment Law: Small Business Updates