The National Labor Relations Board issued a new report on social media policies for employees, giving real-world examples of company restrictions that cross the line, as well as highlighting instances where rules are valid — and they take a sledgehammer to what most companies (even those companies that consider themselves “experts” on social media) believe they can restrict on social media sites.
“I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,” said NLRB acting general counsel Lafe Solomon in a news release.
Jenna Greene of Legal Times says the key question in evaluating social media policies, according to the report, is whether restrictions “would reasonably be construed to chill the exercise of Section 7 rights” by employees under the National Labor Relations Act.
For example, the NLRB found that one policy barring workers from disclosing “confidential guest, team member or company information” on social networking sites like Facebook or You Tube was unlawful. The reason: It could “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7.”
Another no-no: instructing employees to be sure that their posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site.” According to the NLRB, “the term ‘completely accurate and not misleading’ is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”
The NLRB also said it was unlawful to tell employees not to post “offensive, demeaning, abusive or inappropriate remarks” because that covers “a broad spectrum of communications that would include protected criticisms of the Employer’s laborpolicies or treatment of employees.”
As for cautioning employees to “think carefully” about friending colleagues, that too was unlawfully overbroad, according to the NLRB, because it would discourage communication among co-workers.
Not even an admonishment against commenting on legal matters passed NLRB muster. “We found that the prohibition on employees’ commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the Employer,” according to the NLRB.
So what are employers allowed to do? The report included an example of an acceptable policy, which included warnings such as “you are solely responsible for what you post online,” and “Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance,…may result in disciplinary action up to and including termination.”
Former NLRB general counsel Ronald Meisburg, now a partner at Proskauer Rose, found this section to be “of greatest interest,” he said via e-mail. “This goes beyond the usual guidance given by the General Counsel and should be of special interest to employers.”
Mikal E. Belicove said businesses must ensure that their policies and guidelines for employees are reviewed and vetted by legal counsel. That’s because the NLRB hasn’t been a bit shy in ruling that a number of employers have violated the National Labor Relations Act when setting such policies. The problem in the past has been that the board hasn’t exactly been forthcoming in providing specific guidance with respect to what it wants to see in such policies and guidelines in the first place.
That all changed recently when the agency — which is responsible for, among other things, investigating and remedying unfair labor practices — issued a 27-page memo (PDF) on the topic. In it, the board reviewed social-media policies from several businesses that it claims run the risk of infringing on employees’ free speech and labor rights, then offered guidance for businesses going forward.
According to Belicove, among the recommendations to businesses when creating and distributing social media policies for employees are the following six points:
- Know and follow the rules: All of your employees should be urged to read your social media policies and guidelines, and you should make it perfectly clear what is considered inappropriate, being assured that such acts will not be tolerated.
- Be respectful: The board suggests that your policy explicitly state that employees should be “fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of the employer.”
- Be honest and accurate: This includes never posting information or rumors that are known to be false.
- Post only appropriate and respectful content: Specifically, maintain the confidentiality of company trade secrets and private or confidential information; express only personal opinions; don’t represent yourself as a company spokesperson without permission.
- Use of social media at work: Don’t use company equipment for personal messaging unless it is work related.
- Media contacts: Don’t speak to the press without checking with the company’s human-resources department or function beforehand.
The NLRB acknowledges in the memo that more fine-tuning of social media policies and guidelines on the part of employers will be necessary in the future. For example, warning employees about releasing confidential materials online might sound reasonable, but such action might prohibit those very same employees from discussing and disclosing information regarding their own conditions of employment, which the board considers a “protected concerted activity.”
NLRB Acting General Counsel Lafe Solomon’s complete report on social media cases, focusing exclusively on policies governing the use of social media by employees, can be read here.