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Aug 8, 2013

By Jennifer Neumann

Companies may wonder why their social media policies are a cause for concern.

What is wrong with a company prohibiting its employees from bad mouthing their place of employment online? Shouldn’t employees be loyal to their workplace?

Unfortunately, it is not that simple because the law protects employees who engage in a certain kind of complaining.

Close attention from the NLRB

At its most basic, Section 7 of the National Labor Relations Act gives employees the right to engage in concerted activities for their “mutual aid or protection,” including communicating with each other about the terms and conditions of their employment and communicating to third parties (e.g., customers and the public) about ongoing labor disputes.

The NLRB is paying careful attention to social media policies that could be seen to chill the exercise of Section 7 activity and, therefore, violate Section 8(a)(1). This scrutiny and Section 7’s protections apply equally to unionized and non-unionized workforces.

The guidance below stems from various National Labor Relations Board decisions. This is an evolving area, so be sure to consult counsel before implementing a social media policy, and, before making discipline or termination decisions based on social media use.

Top 10 tips

  1. Do not include language in social media policies prohibiting an employee from mentioning his/her employer or saying negative things about his/her employer on social media. The policy should not prohibit defamation or disparagement of the employer or negative discussions, etc., about the employer generally. Note, however, the NLRB approved a social media policy provision prohibiting defamation or discrediting of an employer’s product.
  2. Social media policies should not ban non-commercial use of (i) an employer’s logo or trademark in social media posts, or, (ii) photographs of an employer’s premises. Nor may a policy prohibit the photographing or videotaping of an employer’s premises. Cases have held that the use of trademarks to protest or parody an employer or its products do not violate trademark usage.
  3. Companies who use social media to market or sell products or enhance the company’s reputation should have a different set of rules for the employees who manage the company’s own social media, including protections that ensure the control of that social media remains with the company should those employees leave.
  4. The social media policy should not require that all posts be reviewed or approved by the employer.
  5. Include a provision confirming that the employer’s sexual harassment and anti-discrimination policies apply equally to social media activities.
  6. While employers can prohibit social media use during working time, they cannot prohibit its use during break time if it is accessible. (Note, this is different from prohibiting use of company equipment for non-work-related purposes. But, be careful about inconsistent application of such a policy, especially if the employees regularly use the internet for personal reasons during working time.) Considering placing a firewall blocking access to social media sites from company computers or wifi.
  7. Include a disclaimer or “Savings Clause” in the social media policy resembling the following: “This Policy is not intended to interfere with employees’ rights under the National Labor Relations Act. Nothing in this policy should be interpreted to prevent, interfere with, or otherwise restrain an individual’s legitimate exercise of his or her Section 7 activities under the National Labor Relations Act. This Policy does not apply to discussions or activities involving the terms and conditions of employment.” Such a disclaimer will not make an unlawful provision lawful but is still important to include. In other words, the NLRB’s current view is that a Savings Clause will not prevent a finding that an employer has committed an unfair labor practice if the NLRB determines that a social media policy is too broad or administered in a manner that restricts Section 7 rights. Nevertheless, the prevalent view is that it is better to have a Savings Clause than not.
  8. In one case, the NLRB provided the following guidance to keep in mind when drafting or evaluating a particular social media policy provision: 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. In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.
  9. The above is designed to help draft a conservative policy that the NLRB will likely find does not violate the NLRA. You may want to include broad, more prohibitive language, but beware that the NLRB may find fault with the policy.
  10. Regardless of whether you have a social media policy, be sure to consult with counsel before making a discipline or termination decision based on social media use. Often, employers will overreact to what they perceive to be negative or disloyal comments by current or former employees. It may be clear to your counsel that the conduct at issue falls within Section 7’s protection. In addition, depending on how you discovered the post, your counsel may have other concerns as the method of discovery may implicate privacy issues or violate state law as some states prohibit asking an employee to provide user IDs and/or passwords. It will also provide your counsel the opportunity to confirm that you are making social media-related decisions in a non-discriminatory/non-retaliatory manner.
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