Since Twitter, Facebook and other social media became a fact of life, many employers have struggled to set policies for their own protection, regarding what employees may say in their communications published online. Their primary concerns have been to prevent negative publicity about themselves. A second concern has sometimes been to prevent employees from complaining publicly about workplace conditions, compensation practices and the like.

The last time we looked at this subject (See, Internet Issues in the Workplace, BSBN Direct, Fall, 2011) Facebook was already entrenched in the nightly lives of those under their mid-thirties, with Twitter somewhat less so, but making even more geometric gains. In the present day, what a mere two years ago was an epidemic has now become a constant part of ordinary everyday life for the working population. Two years ago, employers were being told that it was incumbent upon them to set social media policies and many of them did so, assuming that the ability to set a policy was the same as the power to make those policies as restrictive and self-protective as their lawyers could imagine.

Now, however, the Federal National Labor Relations Board has begun to push back against the efforts of employers to repress or regulate employee “free speech.” In its recent rulings, the NLRB has held that many broad social media policies restrictions on free speech are not legal. The newest rule is that workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook. Employees who had been fired for violating their employers’ restrictive rules have been reinstated in their jobs, and the NLRB has indicated that employers need to revise their social media policies.

These recent NLRB decisions (which are currently subject to being held invalid due to the recess appointments of three of the NLRB’s four members, which the Court of Appeals held were unconstitutional) have become part of a wider debate about how much free speech is appropriate online. Colleges and even high schools are attempting to deal with issues of online “bullying” and public speech about personal lifestyle choices including drug use, sexual activity and the like. Local governments claim to have legitimate interests in what public safety workers, teachers and other may say online.

The labor board’s rulings, which apply to virtually all private sector employers, generally tell companies that it is illegal to adopt broad social media policies–like bans on “disrespectful” comments or posts that criticize the employer–if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions. In addition to its recent rulings in specific cases, the NLRB has also issued several reports which conclude that many corporate social media policies improperly impinge on employee free speech rights.

For example, one NLRB report expressed its view that a General Motors policy, which stated that `offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline,’ wrongfully interfered with employees’ right to criticize the company’s labor policies and practices. Similarly, the NLRB late in 2012 overruled a Costco prohibition against employee postings that “damage the company” or “any person’s reputation.”

What’s a company to do? Management consultants are now saying that specific, rather than general, social media policies are the way to treat the subject. But it is certain that this subject is in for more back-and-forth views before any kind of a predictable national consensus is reached.

The NLRB’s recent positions have prompted some business people to opine that its intervention in the social media scene is just a ploy to stay relevant despite the decline of unions in the life of the nation. In this vein, the NLRB is viewed as jumping on a bandwagon solely to increase its power in the workplace. But the NLRB says that they are merely applying longstanding rules to modern situations.

Since the NLRB is part of the Executive branch of government, answerable ultimately to the President, the results of the 2012 national election seem to indicate that the most recent NLRB rulings and policies will continue in the direction of seeking to balance employer desires with employee freedoms. In other words, the newest technological advances in social media will become one more subject of the eternal push-and-push-back process that characterizes lawmaking in our dynamic society.

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