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 laws that protect them, 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.
In 2012, the NLRB’s acting general counsel issued an analysis of social media policies adopted by private employers to determine whether they 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 concluded that most policies violate workers’ privacy rights or their right to organize.
In general, the opinion found provisions objectionable because they are too broad and could be construed as limiting employees’ 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 would not be acceptable to the many state regulators who follow NLRB policies.
Examples of language that NLRB found objectionable:
• “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, we will have to determine when a statement is offensive, demeaning or inappropriate, but not harassing.
The NLRB has published decisions since then making clear it will tend to follow its acting general counsel’s guidance. The acting general counsel’s opinion is controversial and confusing in places, but 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 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.