June 13, 2012

If Barrett Tryon does get fired today by Freedom Communications, as he expects, he may find the National Labor Relations Board has his back.

Tryon, a multimedia journalist at the Colorado Springs Gazette, posted on his personal Facebook timeline a link and quote from a Los Angeles Times report about the sale of his parent company, Freedom Communications.

A Gazette manager told Tryon to remove the post, citing the company’s social media policy that “prohibits you from posting disparaging or defamatory statements about the company” or “communications that might be misconstrued in a way that could damage the company’s goodwill and business reputation, even indirectly.”

Tryon refused.

Unfortunately for the Gazette, this is exactly the kind of restriction the NLRB has been labeling an “overly broad” gag order on workers’ rights.

In at least six recent cases, according to a memo from the general counsel, the independent federal agency that investigates unfair labor practices has found provisions of employer social media policies to be unlawful.

The NLRB seems particularly concerned with any restriction that might impair employees’ rights to discuss employment terms and conditions publicly or with each other. The guiding law here is Section 7 of the National Labor Relations Act, which gives workers the rights to organize, unionize and bargain collectively.

What’s over the line?

The 24-page memo details many examples of employers who went too far in trying to restrict what employees can do online. Here are some social media policy provisions the NLRB ruled unlawful:

  • Instruction not to “reveal non-public company information on any public site.”
  • Warning to “think carefully about ‘friending’ co-workers.”
  • “Don’t comment on any legal matters, including pending litigation or disputes.”
  • “Don’t post photos, music, videos, quotes, or personal information of others without their permission.”
  • “Adopt a friendly tone when engaging online. Don’t pick fights. … Don’t make any comments about [Employer’s] customers, suppliers or competitors that might be considered defamatory.”
  • “You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet.”
  • “Avoid harming the image and integrity of the company.”
  • Do not express public opinions about “the workplace, work satisfaction or dissatisfaction, wages hours or work conditions.”

In short, the NLRB says an employer is on very thin ice telling workers not to gripe publicly about work. Employers may apply other more general restrictions about online behavior and disclosure of company information, as long as there is an explicit exemption for the organizing and union activities protected by Section 7.

Spell out what rights are protected

To be safe, that Section 7 exemption should be precise. For example, the NLRB rejected this disclaimer as being too vague:

This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.

A better approach would be to detail the specific protected activities of Section 7 — “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” — and provide examples of what would and would not be permitted.

For more guidance, here is how the memo describes the NLRB’s decision-making process:

First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful. … In contrast, rules 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.

Earlier: NLRB says Reuters violated reporter’s right to discuss working conditions in a tweet (Poynter) | NLRB sides with Arizona Daily Star in firing of reporter for edgy tweets (Poynter) | NPR’s social media policy gets it right (Poynter).

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Jeff Sonderman (jsonderman@poynter.org) is the Digital Media Fellow at The Poynter Institute. He focuses on innovations and strategies for mobile platforms and social media in…
Jeff Sonderman

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