NLRB Rules Parts of Social Media Policy Are Unlawful

June 25, 2019

The National Labor Relations Board (NLRB) has found the following rule to be unlawful: "Employees should refrain from posting derogatory information about the Company on any such sites and proceed with any grievances or complaints through the normal channels." This rule is unlawfully overbroad because a rule prohibiting disparagement of the employer has a significant impact on employee's rights under the National Labor Relations Act (NLRA). An employer’s concern about reputational damage does not outweigh the core NLRA rights undermined by a broad ban on criticism or disparagement of the employer. Since this rule is an absolute ban on employees making any comments on social media disparaging the employer and is not limited to prohibiting disparagement of the employer’s products or services, the provision would have a significant impact on online protected concerted activity that is not outweighed by any legitimate employer interests. That employees must take their grievances to the employer is an independent violation of the NLRA. Requiring employees to first take work-related complaints to management tends to inhibit employees from banding together. There is no legitimate business interest in preventing employees from discussing grievances among themselves or other third parties before going to management.

The NLRB has also found the following rule to be unlawful:"Employees may not post to any on-line forums . . . providing any Company telephone number or extension." The ban on providing the employer’s telephone number is unlawful, as employees have a right under the NLRA to concertedly communicate their workplace complaints to the public, customers, and others. The employer is effectively banning employees from soliciting customers and/or the public to call the employer to express support for the employees’ NLRA activities and since the employer’s telephone number is publicly available on its website, it failed to provide a legitimate business interest supported by such a rule.