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Employers: Beware of Your Social Media Policy!

By Matthew T. Hovey

Wolf, Baldwin & Associates, P.C.

With the proliferation of Facebook, Twitter, YouTube, blogging, and social media generally, more and more employers are instituting social media policies for employees. Social media policies, however, are increasingly landing employers in hot water and subject to legal challenges. The most unlikely source of the legal challenges? The National Labor Relations Act.

While unions and unionization may seem like relics of the past, the laws that protect them are not! Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representations of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right to "refrain from any or all such activities."

According to the National Labor Relations Board, protected "concerted activity" can include an individual employee or a group of employees which attempt to bring group complaints to an employer's attention, induce group action, or prepare for group action. Examples of these types of protected activities include employees discussing pay, safety concerns, and improving workplace conditions.

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act.

Employers can run afoul of the Act if employer policies, including but not limited to social media policies, have a "chilling effect" on the rights protected by the Act. In a memorandum dated March 18, 2015, General Counsel for the National Labor Relations Board stated that "Although I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act, the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act."

The easiest way for an employer to violate the Act with an employee policy is to write the policy too broadly.

Chipotle's Social Media Policy

Chipotle recently made national news for its social media policy violating the Act. Chipotle's lengthy social media policy included in relevant part: employees "may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors." It also included a prohibition on employees sharing "confidential information." None of those terms were defined.

The social media policy also explicitly stated that the social media policy would "not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or other privacy rights."

In January 2015, a local Chipotle disciplined an employee who made several tweets regarding his employment. His tweets included criticism of Chipotle requiring hourly employees to work on snow days and a response to a customer thanking the chain for free food. The employee responded to the customer with "nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?" Chipotle threatened to discipline the employee and required that he delete the tweets. The employee acquiesced and did in fact delete the tweets, as demanded.

Shortly thereafter, Chipotle terminated the employee after he circulated a petition related to management denying employees breaks.

The employee then filed two charges with the National Labor Relations Board for violations of his Section 7 rights. After a hearing on the matter, the administrative law judge ruled in the employee's favor. The judge ordered Chipotle, in part, to rescind several of its work rules, fully reinstate the employee, and pay him lost wages as a result of his unlawful termination.

The judge first determined that the portions of the policy restricting social media activity which included making "false, misleading, inaccurate, and incomplete statements," as well as "disparaging" statements, were unlawful. Because none of those terms were defined, the judge concluded that each could be read to include statements protected by Section 7 of the Act. This conclusion was supported by Chipotle's decision to apply the policy to the employee's tweets regarding pay and work conditions.

Interestingly, the judge also concluded that the disclaimer referencing the Act did "not serve to cure the unlawfulness" of the violative portions of the social media policy.

The judge then determined that Chipotle violated the Act by requiring the employee to delete his tweets. The tweets "were protected concerted activity," even though the employee made the statements individually, because the tweets "were for the purpose of mutual aid or protection."

Chipotle also violated the Act by directing the employee to stop circulating his petition and then subsequently terminating him for refusing to cease concerted activity.

Take Away for Employers

Employers must be careful in drafting all employee policies. A policy written too simply could unintentionally restrict employees' Section 7 rights. Employers have a legitimate and protected interest in its business operation, but it is essential that all terms used in furtherance of that purpose be clearly defined and reasonably limited. Examples of the types of regulated activities can be beneficial in defining such terms.

In a separate memorandum arising in 2012, the General Counsel highlighted other social media policies which violated the Act. These policies included prohibitions against "friending" co-workers, posting personal information about other employees, and commenting on legal matters. Each of those prohibitions, as written in specific policies, were construed as either prohibiting or chilling protected activity, such as inducing group action and discussing pay and working conditions.

Properly drafted social media policies can certainly, however, prohibit online bullying of co-workers, unauthorized posting which could be attributed directly to the employer, and protecting employer trade secrets.

Employers must also generally be mindful that employees are entitled to discuss both privately and publicly employment related issues such as wages and workplace conditions. Disciplining or terminating an employee because he or she complained about wages or working conditions could result in a violation of the Act. The employee could then file a charge with the National Labor Relations Board and, as in the Chipotle case, be entitled to reinstatement and lost wages.

Lastly, while this article highlights the intersection between social media policies and the Act, the implications also apply to other policies which regulate confidentiality, employee conduct towards supervisors and peers, communications with third-parties, use of photography and recordings, use of employer logos, leaving work, and conflicts of interest. If such policies can be read to restrict protected Section 7 activity, the employer will be in violation of the Act and the consequences could be steep, especially if an employee is improperly disciplined or terminated based on the policy.

Consequently, employers of all sizes, including non-profits, are strongly encouraged to obtain a legal review of all existing and proposed employee policies. Improperly drafted employee policies can expose employers to unnecessary liability and legal expenses. If you have any questions regarding employee policies and employee handbooks, you should contact an experienced and knowledgeable attorney for a consultation.

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