• Some social media activity can be protected activity under the NLRA.
• Because social media policies are so difficult to enforce, employers may not find them worth it.

The National Labor Relations Board (NLRB) has found that employee activity on social media can be protected activity under the National Labor Relations Act (NLRA). The NLRB has often found that policies which restrict employee use of social media are overly broad and constitute an unfair labor practice by chilling employees’ rights to discuss wages, hours, and working conditions.

Employers may not instruct employees to refrain from discussing any company matters or the terms and conditions of their employment on social media. While employers can expect employees to refrain from simply badmouthing the company online, a policy must leave room for employees to engage in protected activity.

Given previous enforcement efforts, constantly changing interpretations, and the need to monitor NLRB activity and update the policy regularly, some employers (and attorneys) find social media policies are not worth the effort. If the prohibited conduct is covered in other policies, such as professional conduct, off-duty conduct, or email and internet use, employers may opt to forgo a social media policy altogether. If employers do not have access to legal counsel to review their policy, this may be a safer option.

Alternatively, a social media policy might be pared down to the bare bones. It might simply clarify that the employment relationship continues to exist when employees are away from work, and that policies on discrimination, harassment, threats of violence, or other conduct remain enforceable when employees are not on the premises. This allows the employer to address conduct violations and protect other employees, but may avoid the potential pitfalls of imposing limitations that are later deemed to be overly broad.