What can your social media policy cover? What can't it do?
Employees talk. That's no big surprise. Sometimes it's about sports, the weather or their families. But more often than not, they talk about work–their hours, their boss, their responsibilities, their supervisors, even their new assignments. When they talk about work, sometimes they air their individual gripes, but sometimes they talk about the complaints they share with co-workers.
The problem that employers face today is that now employees are dragging their gripes and concerns out in public, publishing them on Facebook and other social media platforms for the world to read. Not surprisingly, most employers recoil at the thought of their dirty laundry being hung out in social media. It could hurt business or offend good customers, clients and vendors–or might even cause the release of confidential information and business strategies. These comments or social media postings even might be evidence of discrimination or harassment of co-workers. Many employers already have social media policies and some of those policies have been tested by the National Labor Relations Board (NLRB). So what should employers do about these policies in light of the recent and continuing NLRB attention?
Protected Concerted Activity
The NLRB has jumped in with both feet with an aggressive agenda, overturning employer policies as unlawful and vacating employer termination decisions, ordering reinstatement and back pay in the process. The NLRB's activity with regard to Facebook and social media has been a clarion wake-up call for the non-organized private sector that yes, the National Labor Relations Act applies to you, too. The board's involvement has been focused in two areas–disciplinary action for employee social media activity and what the board views as overly broad policies which in its view chills protected concerted activity among employees.
In the discipline cases, the board is looking at whether the social media activity is actually concerted protected activity under Section 7 of the National Labor Relations Act–old law being applied to new technology. In the employer policy cases, the board has examined whether employer policies reasonably could be construed to potentially chill employees' ability to exercise their Section 7 rights.
Discipline Cases
In the discipline cases, the board has examined whether the employee's Facebook posts are part of or even a call for concerted activity by employees. To fall within the protection of the act, the employees' conduct must be concerted, that is, done with or on the authority of other employees and not solely for and by the employee himself. The activity must be protected, meaning that it must implicate terms and conditions of work. And finally, even if the conduct is protected and concerted, it must not otherwise be inappropriate conduct.
For example, in a recent case titled Richmond District Neighborhood Center, an NLRB administrative law judge recommended the dismissal of a complaint involving the termination of two former employees of a non-profit neighborhood center that runs community youth programs. The ALJ found that the employees were engaged in concerted activity in complaining about their employer on Facebook; yet he found that some of the actions described by the employees and the profanity that they used in their Facebook conversations caused the posts not to be protected. Their terminations were upheld by the ALJ. (The case may be heard by the full NLRB, and given its decided pro-union majority, it seems unlikely that this decision will stand.)
The next closely watched case before the NLRB is Triple Play Sports Bar, in which the board has been asked to determine whether hitting the “like” button on Facebook can be protected concerted activity. In Triple Play, an employee complained on Facebook about the manner in which the employer was withholding payroll taxes from paychecks. A co-worker hit the “like” button. The employer became aware of that and terminated the “liking” employee. Again, it seems quite likely that the board will determine that hitting the “like” button is expressive activity and that by doing so the employee was engaged in concerted activity.
Policy Cases
There have been a half-dozen cases now that have been heard by the full board, as well as three guidance memoranda from the office of then Acting General Counsel Lafe Solomon Jr., on lawful and unlawful policy language, so it is difficult to summarize all of the actions in a few short paragraphs. It is incumbent on employers that do have social media policies, though, to have their policies reviewed now by their legal counsel given the intense focus on this issue by the board.
The board's view of policy language is that it violates employee rights under Section 7 of the act if it could be reasonably construed by employees to chill their exercise of rights under the act. By using the word “could” instead of “would,” the board has broadly interpreted Section 7's reach.
There are a few clear points coming out of the NLRB's actions to date on social media policies. Here is a partial list of some of the policies the board has already said are unlawful under the act. Your policies may not:
* Prohibit the posting of pictures of employees wearing company uniforms.
* Prohibit employees from making disparaging comments about the company or the employee's superiors, or co-workers.
* Prohibit “unprofessional communication” that could negatively impact the company's reputation.
* Prohibit employee discussion of terms and conditions of employment through social media (i.e., wages or working terms).
* Prohibit discussion of confidential information without a clear and specific definition of what is confidential.
* Prohibit the use of the employer's logos and photographs of the employer's store, brand or product, without written authorization.
* Generally prohibit “untruthful” content in social media.
But don't despair. There are permissible rules that still offer protection for employers. For example, your social media policy, among other things, may:
* Prohibit publication of trade secret information and clearly defined truly confidential information.
* Prohibit employees from posting anything on the Internet that could be construed as an act of unlawful harassment, a threat, or other evidence of discrimination.
* Require employees to make personal Internet postings during nonworking hours, meal periods and/or rest breaks.
* Require employees to disclose that all opinions posted by the employee “are my own and do not represent my employer's positions, strategies or opinions.”
* Include a provision that states that nothing in the social media policy is intended to interfere with employees' rights under the National Labor Relations Act to engage in protected concerted activity.
It's a brave new world for employers and employees alike. Employers should be aware that non-union workplaces are subject to NLRB scrutiny on these issues and that a word here and a word there can make all the difference.
This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
Gerald F. Lutkus, a partner with Barnes & Thornburg LLP, represents management in the areas of labor and employment law. He has been listed in Best Lawyers in America and has been designated an Indiana Superlawyer for multiple years.
