January 30th, 2012 | Lisa Milam-Perez
As if grappling with the rapid proliferation of social media in the employment context weren’t challenging enough, the National Labor Relations Act complicates matters further. Even nonunion employers can run afoul of the NLRA with a social media policy that, in the view of the National Labor Relations Board, could dissuade employees from exercising their rights to engage in protected, concerted activity via Facebook, Twitter, or similar sites.
In an effort to craft a consistent agency approach to resolving this burgeoning litigation, NLRB Acting General Counsel Lafe Solomon has instructed regional offices to forward social media cases directly to the Board’s Division of Advice. About 75 cases have made their way to the office to date and, they are “extremely fact-specific,” making it even tougher for employers to glean hard and fast rules for compliance. In an ongoing effort to offer “further guidance to practitioners and human resource professionals,” the General Counsel has issued two memoranda: one (OM 11-74) on August 18, 2011, discussing the NLRB’s resolution of 14 social media cases; a second (OM-12-31) on January 25, outlining more recent cases reviewed by his office.
An employer’s policies “should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees,” according to Solomon. Distilled to its essence: standard labor law principles apply here. That means that even if it does not expressly bar NLRA-protected activity, the NLRB would still find fault with a policy that:
- “chills” employees from exercising their protected Section 7 rights;
- significantly burdens an employee’s exercise of those rights;
- was enacted in direct response to union activity; or
- is applied in such a manner that it restricts the exercise of protected rights.
The good, the bad, and the iffy. The most recent memo covers seven cases that addressed whether an employer’s social media policy passes muster under Section 8(a)(1) of the Act. In five instances, the policies were found to be unlawful; one survived Board scrutiny; and one policy was deemed lawful after it was revised. These provisions — several of which are no doubt a regular fixture in employee handbooks these days — violate the Act:
- A collection agency’s rule prohibiting employees from making disparaging comments about the company through any media, including blogs or other electronic media;
- A home improvement chain’s directive that employees not identify themselves as company employees in social networking situations except when discussing terms and conditions of employment “in an appropriate matter”;
- A restaurant chain’s proscription against using “disrespectful conduct” and having “inappropriate conversations” on Facebook with fellow employees;
- A health care employer’s ban on “using social media to engage in unprofessional communication” that could negatively impact the employer’s reputation or interfere with its mission, or “unprofessional/inappropriate” communication regarding members of the employer’s community;
- A testing lab’s policy against disclosure of confidential, sensitive, or nonpublic company information with outside parties without prior company approval;
- A requirement that employees obtain prior approval to identify themselves as company employees on social media sites and expressly state that their comments are their personal opinions and not the employer’s;
- A provision barring employees from making statements to the media or on electronic bulletin boards or blogs without prior approval;
- A rule that employees must first discuss work-related concerns with their manager or supervisor before posting communications, or face discipline or discharge.
These rules earned the NLRB’s seal of approval:
- A drugstore chain’s policy that stated employees could be asked to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations or other laws; barred disclosure of confidential and/or proprietary information, including customers’ personal health information; and prohibited social media posts about “embargoed” corporate information such as launch and release dates or reorganizations;
- A provision that employees engaged in social networking activities must indicate that their views were their own and not those of the employer; in this case, the rule appeared in a separate section entitled “Promotional Content,” applied only to communications designed to endorse, promote, or advertise the employer’s products or services, and included a reference to relevant FTC regulations.
One employer redeemed its policy in the Board’s eyes with a bit of reworking:
- A restriction on using social media to post “vulgar, obscene, threatening, intimidating, [or] harassing” comments about the company, coworkers, or supervisors, or comments that would violate the employer’s antidiscrimination or anti-harassment policies was permissible. The employer had salvaged its policy with this revised language after disposing of an overbroad prohibition on “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.”
Drafting tips. These hits and misses offer a few useful pointers for employers that want to implement a social media policy that squares with the NLRB’s directives:
- Flesh out vague references to “defamatory,” “inflammatory,” “inappropriate,” or “disrespectful” communications with specific examples of plainly egregious or clearly unprotected conduct (i.e., posting sexually inappropriate content).
- Avoid using examples that may implicate NLRAü rights. Case in point: broadly stating that “sharing confidential information” is unprotected conduct could impermissibly restrict employees from discussing wages. Instead, prohibit the disclosure of” trade secrets” specifically or, in the case of a healthcare employer, “confidential patient information.”
- The old rules still apply. A policy that grants employees free rein to Tweet away on their own time but restricts such communications while at work or on (or via) company property would run afoul of the NLRA, which clearly allows employees to engage in protected activities on-site during nonwork time, in nonwork areas.
- Similarly, requiring that employees refrain from using the company name or service marks undermines employees’ protected right to use the name or logo on leaflets, pickets, and now blog posts while engaged in protected activity.
- Use prior restraint sparingly. Requiring company approval beforeü communicating via social media raises a red flag. Target such a mandate narrowly, to those circumstances when truly essential to protect reputation or intellectual property.
- Include limiting language to clarify that the socialü media policy does not restrict employees from exercising their protected Section 7 rights (bonus points if your policy articulates what those rights actually are). Keep in mind, however, that a generic disclaimer alone might not save you, particularly where ambiguities remain. In fact, one employer policy above was held unlawful despite a savings clause stating that the rule would not be applied to efforts to organize, bargain collectively, or engage in other concerted activity.
None of these strategies is foolproof. Much depends on the context in which an employer’s policies are applied, as well as the fact-specific nature of an employee’s online conduct.
Employee discipline. Challenges to employer policies don’t typically arise in a vacuum; these cases generally appear before the NLRB only after an employee has been discharged for posting a status update or Tweet that displeases an employer. Of course, disciplining an employee for an irksome social media posting may also find an employer responding to an unfair labor practice complaint. That’s a topic for another day.