Employee Use of Social Media: What Can Employers Control?

Section 7 of the National Labor Relations Act (the Act) guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives 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."

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.

While at first glance it may seem that the Act has nothing to do with social media, in fact, an employer’s attempt to curtail an employee’s social media activity or comments can be a violation of the Act if it is determined that the statements posted on social media are part of “concerted activity” for “mutual protection.”

For example, Section 7 of the Act allows employees to criticize their employer or their working conditions, even if the criticism is inaccurate, and in some cases, even if it is abusive or defamatory. An employer cannot discipline or terminate an employee for making these statements and may not make a rule prohibiting employees from making these statements. 

According to the National Labor Relations Board (NLRB), employers may not, “promulgate, maintain, or enforce work rules that reasonably tend to inhibit employees from exercising their rights under the Act.” Some corporate employee handbooks attempt to prohibit this kind of activity on the part of an employee by developing rules about what employees can or cannot post on their social media accounts. Employers should use caution or consult an attorney when including these rules as part of an employee handbook, since too many restrictions could be considered to violate the employee’s rights under Section 7 of the Act.

The Board’s standard for deciding whether a policy is in violation of the Act is based on whether an employee could reasonably think that the policy violates section 7 activity. If so, the policy may be considered non-compliant and could result in an NLRB charge, audit or fine. In other words, if an employee could believe that a rule restricting what they post on social media is intended to prevent employees from speaking on social media about the terms and conditions of their employment, the employer could be found to be in violation. 

For example, if an employee posts about problems with their supervisor, or complains about low pay or other working conditions online, it may be considered part of communicating with other employees about their working conditions, and therefore protected under the Act. And if an employee is terminated as a result of this activity, the company could be in danger of a wrongful termination claim under the Act.

Many of these cases will depend on whether the activity is found to be “concerted” activity – the employee is expressing sentiments shared by or discussed with coworkers or previously brought to the attention of management – or whether the post expresses the thoughts of one individual employee. It may not always be so easy to determine, however, since the NLRB defines “concerted activity” to include, “circumstances where a single employee seeks to initiate, induce, or prepare for group action.” 

An employer does have the right to control what an employee does on the employer’s time (i.e. during working hours) and with the employer’s equipment. An employer also has a right to restrict employees from posting confidential information online, including trade secrets, customer information, and to prohibit posts that would threaten or harass other employees. An employer can prohibit employees from using the company’s name, logo or other protected marks online, and can prohibit them from making false statements about the company.

However, the employer has less control over what an employee posts from their personal computer or mobile device on their own time.

If you need help drafting social media policies for your employees, or if you have seen social media activity by your employees that concerns you, contact an employment lawyer before taking action that could get you into hot water with the NLRB. Describe your issue on our site to find an employment attorney near you.