Social Media & Employment Law: Not Just a Matter of Free Speech

Law has generally been thought of as moving slower than technology.[1] As social media use grows, this thought could not be more true.[2] Social media has played a large role in the termination of employees across the world in recent years, for reasons such as violating company policy, divulging privileged information, or complaining about the workplace.[3] While most people immediately associate policies restricting social media use with infringements on First Amendment rights, such policies also raise questions under the National Labor Relations Act (NLRA).[4]

With NLRA questions growing, the National Labor Relations Board (NLRB) issued a series of reports “presenting case developments rising in the context of today’s social media.”[5] The NLRB reviewed a number of social media policies and found that certain provisions of most policies violated Section 7 rights, which allow employees to self-organize, collectively bargain, or perform any similar activities.[6] Section 7 rights are interpreted very broadly by the NLRB, making it necessary for employers to narrowly tailor any policies that may have an effect on those rights.[7]

The first policy the NLRB reviewed simply stated “[d]on’t release confidential guest, team member, or company information.”[8] On its face, this policy seems perfectly reasonable, yet the NLRB found it unlawful.[9] The Board found that the policy “would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment or employees other than themselves–activities that are clearly protected by Section 7.”[10] Because of the broad construction of Section 7 rights, the NLRB has routinely found that policies that could be “reasonably interpreted” as to prohibit employees from discussing such confidential information as wages and working conditions are unlawful as they prohibit discussions of important elements of collective bargaining and self-organization.[11]

There was one policy reviewed by the NLRB that was found to be completely lawful.[12] This policy provided specific details and examples on prohibited actions such as “offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of . . . [any] status protected by law or company policy,” failure to correct factual mistakes in social media postings, disclosure of trade secrets, violations of federal disclosure laws, and unauthorized representation of the employer.[13]

Through its review, the Board made one questionable decision. A policy stating that the employer “encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.”[14] The Board stated that this policy is unlawful because employees have a “protected activity of seeking redress through alternative forums.”[15] The decision is questionable, however, because the policy in question only “encouraged” employees to use certain grievance routes.[16] There was no final policy–no singular means of seeking redress–provided in the policy. Of course, an encouragement from an employer can be taken by some employees as a mandate, as acknowledged by the Board when it suggests the policy could “inhibit” alternative redress.[17]

It seems unlikely that this is the last any of us hear about social media policies violating employment law. The NLRB report issued in May 2012 was the third such report in less than one year. As social media continues to grow and become more prevalent in the workplace, expect more tension and more policy revisions.

[1] Lyria Bennett Moses, Understanding Legal Response to Technological Change: The Example of In Vitro Fertilization, 6 Minn. J.L. Sci. & Tech. 505, 515 (2005).

[2] See Lafe E. Solomon, NLRB, Report of the General Counsel at 2 (May 2012) (attached to Memorandum from Anne Purcell, Associate General Counsel, NLRB, to all regional directors, officers-in-charge, and resident officers, NLRB (May 30, 2012) (on file with author)).

[3] See Tiffany Hsu, When social media gets your fired: Francesca’s CFO is out, L.A. Times, May 14, 2012, http://,0,2912412.story; Kerry M. Lavalle, Why every employer should adopt a social media policy, Chi. Daily Herald, April 16, 2012 at 42.

[4] See Lavelle, supra, note 3.

[5] Supra, note 2 at 2.

[6] 29 U.S.C. § 157 (2012)

[7] See University Medical Center, 335 N.L.R.B. 1318, 1320-22 (2003), enforcement denied 335 F.3d 1079 )D.C. Cir. 2003) (holding that ambiguous rules with no limiting language or context are unlawful).

[8] Lafe, supra, note 2 at 4.

[9] See id.

[10] Id.

[11] See id. See also Cintras Corp., 344 N.L.R.B. 943, 943 (2005), enforced 482 F.3d 463 (D.C. Cir. 2007).

[12] See 19-20.

[13] Lafe, supra, note 2 at 23.

[14] Lafe, supra, note 2 at 11.

[15] Id.

[16] See id.

[17] See id.

Author: Jeff Hinkeldey

Jeff is an Associate Editor for the Rutgers Computer & Technology Law Journal. He has a strong interest in public interest work, as shown by his experience working with the Burlington County Public Defender and Human Rights Campaign. He is also a Marsha Wenk Public Interest Fellow at Rutgers. Jeff hopes to find a career in juvenile representation or civil litigation. He currently serves as co- chair of the LGBTQ Law Caucus, events chair for the Public Interest Law Foundation, founding member of the American Constitution Society, and sits on the Rutgers Moot Court Board. In his free time, Jeff likes to cheer on the Philadelphia Eagles and Phillies or take in a local music performance.

2 thoughts on “Social Media & Employment Law: Not Just a Matter of Free Speech”

  1. Social media’s affect on employment law is interesting indeed. Nice article. The citations are appreciated. Like you mentioned, I’m sure that tensions regarding this topic will only become greater in the near future.

  2. There are so many labour law made that are beneficial for employees. I agree with the law that is made against the Social Media Activities of the employees. I also feel that employees need not to write bad things about company on social media, I am not against the right to speech of employees but I think if problems are discussed at personal level, that is much better approach than writing something bad about the employer and organisation on Facebook and Twitter. Even to solve the problems and disputes between the employer and employee, there is separate relations department that is being set in the organisation to make the things work and better.

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