Rarely do fire departments need to look to the National Labor Relations Board (NLRB) for guidance. However, when it comes to developing social media policies, they would be well advised to do so. Many common departmental policies regarding social media use by employees may not be consistent with NLRB’s interpretation of the law.
The NLRB is the independent federal agency authorized under the National Labor Relations Act to safeguard employees’ rights to organize a union and to prevent unfair labor practices committed by private-sector employers. Section 7 of the act protects the right of employees to organize into unions and to participate in public concerted activity. Section 8 makes it an unfair labor practice for employers to interfere in any way with the rights of employees granted in Section 7.
The act does not apply to public employees directly, but most states have labor relations laws that provide similar protections for public employees, according to Eric Meyer, a partner at the law firm of Dilworth Paxson in Philadelphia. Further, Meyer notes, the constitutional right to free speech especially may protect the right of public employees such as firefighters to speak out on matters of public safety and health. This principle would protect a firefighter’s criticism of departmental operational practices or a city’s decision to reduce staffing.
In 2012, the NLRB’s acting general counsel issued a report analyzing social media policies that had been adopted by several private employers to determine whether the policies were consistent with federal labor laws. The report’s title gave a good idea of his findings: “Rules on Using Social Media Technology and on Communicating Confidential Information Are Overbroad.” The acting general counsel disapproved of most policies, concluding either that they violated workers’ privacy rights or their right to organize and take collective action.
In general, the opinion found provisions objectionable because they were too broad and could be construed by employees as limiting their right to organize or speak out on health and safety issues. It seems likely that many current corporate social media policies will not be acceptable to the NLRB. Likewise, it is reasonable to conclude that many current fire department policies will not be acceptable to the many state regulators who follow NLRB policies.
Since those findings were released, labor law blogs have lit up with comments, many critical, about the opinion. Meyer described it in his blog, The Employer Handbook, as “inconsistent, overreaching, it’s a hot tepid mess.”
Some examples of language that NLRB found objectionable:
• “Don’t release confidential guest, team member or company information…” This was found unlawful because it could reasonably interpreted as prohibiting employees from discussing and disclosing information about their conditions of employment.
• “Communicating confidential information…you should never share confidential information with another team member unless they have a need to know the information to do their job…” This was determined to be inappropriate because employees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment.
• “If you engage in a discussion related to (your department)…you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public…information on any public site.” The opinion disapproved of the “completely accurate and not misleading” language because it could be reasonably interpreted to apply to criticisms of the employer and its personnel policies.
• “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” The acting general counsel disapproved of this provision, saying that it “proscribes a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees.” Indeed, several of the policies it reviewed had similar language that was considered inappropriate. However, language prohibiting “harassment, bullying, discrimination or retaliation…” was acceptable. If this opinion is upheld, then we will be in a position of having to determine when a statement is offensive, demeaning or inappropriate, but not harassing.
• “Think carefully about ‘friending’ co-workers…on external social media sites” was considered a violation because it would discourage communications among co-workers.
• “Employees should avoid harming the image and integrity of the company…” is considered to be unlawfully overbroad because it could be construed to prohibit criticism of a company’s labor policies or the way it treats employees.
The NLRB Board itself has published decisions since then making clear that it will tend to follow its acting general counsel’s guidance.
The acting general counsel’s opinion is controversial and confusing in places, but it provides guidance about the direction of the law related to social media and ought to be considered by fire departments as they draft social media policies. Departments must be very careful in developing policies to ensure that any restrictions on employee activities are narrowly drafted so that they cannot possibly be construed to restrict their rights to organize or take collective action. Clearly, the NLRB’s actions make drafting social media policies that will pass legal muster more difficult.
