New NLRB standards may change how lenders use Facebook

For most banks, the National Labor Relations Board has little to no influence on how they do business. After all, banking is not an industry associated with labor unions. However, Lenders — and all covered businesses — are subject to provisions of the National Labor Relations Act, even if they are not unionized.

One provision of the NLRA prohibits employers from undermining employees' rights to engage in concerted protected activity — a form of free speech aimed at protesting the terms or conditions of employment.

Under President Obama, the NLRB passed broad standards, including a determination that even neutral workplace rules violate the NLRA if they could "chill" participation in concerted protected activity. To that end, many employers were found to have violated the NLRA through their monitoring of employee Facebook accounts because doing so would impede employees from voicing their concerns on social media.

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This put banks in a particularly difficult position as regulators expected and demanded monitoring of Facebook and social media at the same time that the NLRB was effectively prohibiting it. In response, many banks limited social media to company-owned pages and stayed away from monitoring personal social media altogether, requiring that all work related social media be posted on sites the company owned.

Now, that conundrum has eased. New precedent emerging in the past few weeks allows employers to impede an employee's right to engage in concerted activity when the employer's legitimate interests outweigh the potential activity at issue. In essence, it is now a balancing test taking into account the needs of the employer and respect for the rights afforded by the NLRA. In the context of banks monitoring Facebook to ensure accurate and compliant communications to borrowers, lenders clearly have a legitimate interest.

Moreover, in the banking industry the extent to which such communications will functionally impede NLRA rights is going to be tenuous in most cases. Of course, to ensure that such monitoring is lawful it must be implemented in such a way as to limit the inquiry to areas where the lender's interest is most acute and conversely avoid other communications where the lender's interests are remote. Further, any monitoring plan should avoid personal posts that could give rise to claims that an employer discriminated against an employee after discovering they were a member of a protected group.

As always, there remain many good reasons for lenders to continue to maintain a separation between personal and business social media for employees. However, now that the legal barriers to monitoring personal pages have dissipated, it is not only possible — but may be incumbent upon lenders — to implement screening procedures of personal social media sites.