The highly respected Pew Center recently released its demographic data on social media usage. The data shows that regardless of age, race, sex, education, or income, well over half of the adults in the United States who use the internet, use social media. It is therefore reasonable that employers would formally address their expectations of employees’ social media use through a social media policy. Unfortunately, employer regulation of that use may chill the exercise of employees’ Section 7 rights in violation of the National Labor Relations Act (“NLRA”). Indeed, the National Labor Relations Board (“NLRB”) has approved few employer social media policies over the last two years. The Board has criticized most employer social media policies for using vague, ambiguous and overly broad language that employees could reasonably construe to limit their Section 7 rights.
The NLRB’s Office of the General Counsel issued three Operations-Management Memorandums, between August 2011 and May 2012, detailing the results of investigations in dozens of social media cases. The Memorandums are available on the NLRB’s website. OM 12-59 and 12-31 can be found here, and OM 11-74 can be found here. First, the investigations have condemned broad, undefined language – like bans on “disrespectful,” “inappropriate,” “offensive,” or “abusive” comments and posts.
Instead, social media policies should specify what an “appropriate” or “inappropriate” post is, either through specific examples of what is covered or through limiting language that would exclude Section 7 activity. For example, the policy should specify that “inappropriate” posts include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.
Policies that prohibit employees from posting comments that “damage the company” should also be avoided. Instead, a social media policy may specify that employees are prohibited from making posts or comments disparaging or criticizing customers. The NLRB has expressly ruled that employees may be disciplined or terminated for posting inappropriate comments that are not intended to engage in dialogue with other employees. Accordingly, a Facebook comment that criticizes the employers’ customers is personal venting not “concerted activity.”
The NLRB has also invalidated policies that prohibit employees from posting company logos or names, because employees could construe such prohibitions as limiting Section 7 activities like electronic or paper leaflet, cartoons, or picket signs in connection with a protest involving the terms and conditions of employment. Likewise, general restrictions on sharing the company’s confidential or non-public information have been found to prohibit Section 7 activities. To lawfully prohibit employees from sharing their employer’s proprietary information on social media outlets, the policy should provide specific examples of prohibited disclosures. To illustrate, the policy could specify that the company’s non-public proprietary information includes information having to do with upcoming promotions, corporate strategies, advanced advertisements, playbooks, the development of systems, products, or internal reports. Providing specific examples will help employees to understand that it does not reach protected communications about working conditions.
All in all, to avoid running afoul of the NLRA, employers must carefully draft their social media policies to include specific examples of prohibited conduct to make clear that the policy is not intended to stifle Section 7 activities. Simply stating that the policy does not apply to Section 7 activities may not be enough to cure an overly broad or ambiguous policy. Employers may find it useful to review the one (revised) social media policy that the investigators cited with approval. The Office of the General Counsel attached a lawful social media policy to OM 12-59, available here.
This article was prepared by Heather Sherrod (hsherrod@fulbright.com or 214 855 8369) from Fulbright’s Employment and Labor Practice.
