There has been a lot of buzz about social media in the workplace. Employees and employers are using social media more than ever before. However, the pervasive presence of social media in the workplace has made it the focus of federal agencies such as the National Labor Relations Board and the U.S. Equal Employment Opportunity Commission.
The National Labor Relations Board, whose focus is union activity including union elections and investigating unfair labor practices, has been paying a lot of attention to social media policies. The board has taken the position that social media policies can inhibit “protected concerted activity.”
Section 7 of the National Labor Relations Act provides as follows:
“Employees shall have 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 shall also have the right to refrain from any and all such activities.”
This means that both union and nonunion employees are allowed to discuss the terms and conditions of their employment and that such discussion is protected concerted activity. Social media policies in some cases can be considered to chill this right to discuss terms and conditions of employment.
To this end, the National Labor Relations Board has struck down several employer social media policies as overly broad and a violation of employees’ Section 7 rights. The board also has issued guidance regarding the opinions on social media policies. Confidential information has proven to be a tricky area for social media policies.
The U.S. Equal Employment Opportunity Commission also has taken an interest in social media and its implication in the workplace. The EEOC enforces federal laws regarding discrimination, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with Disabilities Act.
Like the national labor board, the EEOC has taken an interest in social media and its impact on the workplace. For example, employers who review social media accounts during the hiring process are likely able to discern an applicant’s general age, race, gender and even national origin. The EEOC believes employer’s could use this information in a discriminatory fashion. Also derogatory or harassing posts by employees could lead to employer liability.
Employers should review and revise their policies to make sure they conform with the current legal standards.
Sarah Phaff is an employment law attorney in Atlanta and Macon at the national labor and employment law firm of Constangy, Brooks, & Smith LLP.