WSJ Misleads On Labor Relations Board's Efforts To Protect Employees' Social Media Activities

Blog ››› ››› LARA SCHWARTZ

The Wall Street Journal argued in an editorial that the National Labor Relations  Board, which is charged with protecting workers' right to organize, has overstepped its authority to do unions' bidding regardless of the law--particularly in its approach to employers' social media policies.  A review of the NLRB Office of the General Counsel's memos, however, demonstrates that the WSJ's characterization of the body's policies is without merit.

The January 6 editorial, titled "Another NLRB Power Grab," accused the body of becoming "a wholly-owned subsidiary of Big Labor, rather than a neutral arbiter of fair labor practice." In support of this claim, the WSJ presented blatantly false statements about the NLRB's approach to employers' social media policies:

Also insidious is the NLRB's effort to regulate how companies handle social media. In the Facebook and Twitter age, employers have an obvious interest in rules that prohibit their employees from defaming colleagues, or broadcasting confidential information. The NLRB has nonetheless decided that even reasonable restrictions impinge on concerted activity.

In fact, both the NLRB's Office of the General Counsel (OGC) and the Board itself have explicitly stated that employers may set certain limits on their employees' social media activities as long as they do not prohibit activities protected under the National Labor Relations Act.  Three OGC memos provide guidance about what types of employer policies pass muster under the NLRA.

In the most recent memo, dated May 30, 2012, the OGC examined seven cases about employer social media policies and concluded that one of the employer policies was lawful in its entirety, while some provisions of the remaining six policies "are overbroad and thus unlawful under the National Labor Relations Act." 

Although the OGC concluded that some aspects of a confidentiality policy were invalid, it also recognized that a policy that "admonishes employees to '[d]evelop a healthy suspicion[,]' cautions against being tricked into disclosing confidential information, and urges employees to '[b]e suspicious if asked to ignore identification procedures' " is lawful.

Nor did the OGC state that all social media posts are "concerted activity" that is protected under the NLRA.  In fact, although it concluded that employees' Facebook posts can be protected if they meet the requirements applicable to communications outside of social media, it defined such posts narrowly.  In a January 2012 memo,  the OGC restated the NLRA requirement that protected activity must be "concerted," meaning that it seeks to involve other employees in a discussion of the terms and conditions and employment, and advised that an employee's online discussion would not be protected just because fellow employees "liked" a post.

Policies that are sufficiently clear and not limited in scope can pass muster in their entirety.  The OGC advised that policies "that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful."

In short, the WSJ's characterization of the NLRB's positions on social media bears no resemblance to the guidance it has publicly shared. 

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