Is Your Social Media Policy Violating Federal Law?

Since August of 2011, the National Labor Relations Board has issued three comprehensive memorandums regarding employers’ social media policies and the National Labor Relations Act. In the past few months, the NLRB issued three additional decisions, finding that the social media policies of three separate employers could be interpreted to violate the NLRA by “chilling” (i.e. discouraging) employees’ rights to discuss their terms and conditions of work. This NLRB activity has made many traditional policies suspect and requires action by employers.

Frequently the social media policy included in an employee handbook will contain language governing what an employee may or may not post in social media regarding his/her employer. While this may seem like a sensible and harmless request, the NLRB has found many such provisions to violate an employee’s right to freely discuss working conditions under the NLRA.

Generally, employers’ social media policies violate the NLRA if the policy intends to stop (or “chill”) an employee from engaging in protected activity under Section 7 of the NLRA. There are two primary “rules” regarding social media policies: employer policies cannot be so broad as to prohibit the activity that is protected by federal labor law (i.e., discussion of wages or working conditions or criticism of management among employees), and an employee’s comments on social media are generally not protected if they are “mere gripes” and not comments made with the goal of starting or continuing group action among employees.

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful. The following are various examples of employer social media policy provisions that have been determined by the NLRB to be unlawful:

• Prohibiting employees from posting pictures of themselves in any media depicting the company in any way, including a uniform or corporate logo.
• Prohibiting employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers or competitors.
• Prohibiting “any communication or post that constitutes embarrassment, harassment or defamation of the [employer] or of any employee, officer, board member, representative, or staff member.”
• Prohibiting “statements that lack truthfulness or that might damage the reputation or goodwill of the employer, its staff, or employees.”
• Prohibiting employees on their own time from “talking about company business on their personal accounts; from posting anything they would not want their manager or supervisor to see or that would put their job in jeopardy; from disclosing inappropriate or sensitive information about the employer; and from posting any pictures or comments involving the company or its employees that could be construed as inappropriate.”
• Cautioning employees to check with the employer prior to posting information that may fall into a prohibited category.
• Instructing employees to report inappropriate internal social media activity.

The NLRB overturned all of these policies on the grounds that the prohibitions could be reasonably construed to prohibit protected discussion about an employer’s labor policies or treatment of employees or terms and conditions of employment, or specifically encompass topics related to Section 7 activities.

In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful. To that end, the NLRB has upheld the following policy provisions as legal:

• Provision stating that harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if done after hours, from home and on home computers.
• Rule stating that employees may not post anything on the internet in the name of the employer or in a manner that could be reasonably attributed to the employer without prior written authorization.
• Rule requiring employees to maintain the confidentiality of the employer’s trade secrets and private and confidential information.
• Prohibiting employees from using or disclosing confidential or proprietary information, including personal health information about customers or patients.
• Prohibiting employees from discussing launch and release dates and pending reorganizations.

In light of these decisions, the best advice would be to carefully review your social media policies and ensure they cannot be interpreted as limiting the rights of your employees under the NLRA. When reviewing your policies, consider the following:

• Identify expectations for use of social networking sites, and related use of the employer’s time and equipment.
• Provide notice that employees must abide by the employer’s “code of conduct” and other policies established in the company’s employee handbook when posting comments on social networking sites.
• Prohibit employees from implying that they are a company spokesperson unless the employee is expressly authorized to do so.
• Ensure that the policy does not violate state whistle-blowing laws.
• Ensure that the policy does not attempt to regulate employees’ legal, after-hours conduct.
• Include a disclaimer stating that nothing in the company policy is intended to interfere with protected concerted activity.

As you can see, there is a “fine line” between permissible and prohibited policies according to the current NLRB. Since crossing that line can result in unfair labor practice penalties and reinstatement in an employee’s termination situation or the voiding of an employer victory in a union representation election, we strongly recommend that employers review their policies and employee handbooks with experienced labor and employment law counsel.

If you have any questions regarding this LawFacts or any other employment or labor law question, please contact the author, Tara Craft Adams, or any attorney at Peters, Revnew, Kappenman & Anderson, P.A. at (952) 896-1700.