Do you need a social media policy or are the legal obstacles just too much? Now more than ever, people are exercising their First Amendment right to free speech, which, not surprisingly, can cause heartburn at the workplace. In times of contention, stress, and uncertainty, speech often multiplies, and, in an era where someone's speech is accessible to the world with just a few clicks, an employee's online speech is often cast as the speech or opinions of the employer. Additionally, the National Labor Rights Act (NLRA) presents another hurdle, as it protects employees' rights to discuss the terms and conditions of their employment. What can and should a responsible employer do?
Many employers implement social media policies, addressing employees' actions on social media to enforce their policies and protect their brand. Although important, an employee's right to free speech or NLRA protection is not without limits. How do you balance the First Amendment and employees' NLRA protections on the one hand and your business interests on the other? Below are some considerations to keep in mind.
The First Amendment May Not Apply: Public vs. Private Employers
The First Amendment says that "Congress shall make no law . . . abridging the freedom of speech." Then came the 14th Amendment, which applied the First Amendment to state governments and their divisions. All of that to say, the First Amendment prohibits public entities, and therefore public employers, from infringing on their employees' constitutionally protected rights to free speech. However, even public employers have some ability to control employee speech, such as when the speech is illegal, riot-inducing, or made as part of their official duties. For example, in Garcetti v. Ceballos, the U.S. Supreme Court held that the City of Los Angeles did not violate a public official's First Amendment rights by taking action against him for a speech made in his official duties, even though it addressed a matter of public concern. Speech not made as part of an official duty and that addresses a matter of public concern is protected by the First Amendment. For example, in Marquardt v. Carlton, the Sixth Circuit Court of Appeals held that the city may have violated an employee's First Amendment rights when it terminated him for social media posts of his opinions on a recent police shooting, because it was a matter of public concern.
Don't Forget the NLRA (Even if You Don't Have a Union)
While private employers do not have to navigate First Amendment issues, they are not totally off the hook. The NLRA protects employees' rights to "engage in concerted activities for the purpose of . . . mutual aid or protection." Importantly, this has been interpreted to mean that employees have a right to discuss the terms and conditions of their employment, such as pay rates. For example, in Quicken Loans, Inc. v. National Labor Relations Board, the D.C. Circuit Court of Appeals sided with the NLRB and affirmed that an employer's policy forbidding employees from discussing "non-public" employment information infringed on their rights to discuss terms and conditions of employment.
Even though the NLRA is typically associated with unionized workers, employees have this right whether they are unionized or not. Thus, private employers beware: Although the First Amendment may not keep you from controlling employee speech, the NLRA does . . . but only to an extent.
Unpacking the NLRA
The NLRA protects an employee's right to engage in concerted activity by discussing the terms and conditions of his or her employment. These are commonly referred to as "Section 7 rights." Let's unpack this:
- First, the speech must be "concerted activity," meaning that the employee is discussing with other employees the terms and conditions of his or her employment, or continuing a prior conversation with other employees regarding those terms and conditions. Speech that is simply a reflection of the individual's thoughts and concerns, without evidence that other employees have expressed their agreement, is likely not concerted activity.
- Second, the discussion must revolve around the terms and conditions of employment. Speech that is unrelated to the employee's employment is likely not protected by the NLRA.
- Lastly, any protected speech generally loses its protected status if it is , or violates a company's anti-discrimination or anti-harassment policy, even if it is concerted and addresses the terms and conditions of employment.
Social Media Policies: What Does the NLRB Recommend?
Social media policies generally restrict, or attempt to control, what employees say online. When do these policies go too far and restrict employees' Section 7 rights? The NLRB has published some reports summarizing its decisions on what social media policies and practices infringe on employees' Section 7 rights to discuss the terms and conditions of their employment.
The NLRB's guiding rule: A social media policy is unlawful if a reasonable employee would interpret it as prohibiting the exercise of Section 7 rights. This almost always depends on the context surrounding the provisions. However, here's a list of some common provisions that the NLRB deemed overly broad:
- Prohibiting employees from making "disparaging," "harmful," or "embarrassing" remarks about the company or discussing the company in an "inappropriate manner"
- Prohibiting employees from posting pictures of themselves in any media that depict the company in any way, including company uniform or logo
- Prohibiting the use of language or action that is inappropriate or of a general offensive nature
- Prohibiting employees from disclosing or communicating information of a "confidential, sensitive, or non-public" nature, without providing examples
- Stating that employees should generally avoid identifying themselves on their social media as the company's employees
- Requiring employees who had identified themselves as company employees on social media to expressly state that their comments are their personal opinions and do not necessarily reflect the employer's opinions
Often, if a social media policy's provision includes examples of prohibited behavior, which do not implicate Section 7 rights, or if it limits prohibited conduct to certain circumstances, such as speaking with the press, the NLRA will deem that an employee could not reasonably interpret it as infringing on their Section 7 rights.
It is important to note that, in some instances, the NLRB has held that, even though the social media policy was overbroad, the employer nonetheless lawfully disciplined an employee for his or her actions on social media (e.g., the employee's speech was unrelated to employment, not concerted with other employees, or harassing). Thus, keep in mind that an overbroad policy alone is not the determinant of whether an action against an employee violated the NLRA; what is important is whether the action taken was because of or restricted a conversation between employees about the terms and conditions of their employment.
If you want to implement a social media policy, consider the First Amendment and the NLRA. Policies are good ideas and can give your employees some valuable guidance about what they should or shouldn't do. However, remember that the First Amendment applies if you are a public employer. If you are a private employer and want to discipline an employee pursuant to a social media policy, take a deep breath and think about NLRA Section 7 rights (and maybe call your legal counsel).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.