The National Labor Relations Board (Board)’s most recent guidance was helpfully accompanied by a sample social media policy from the Walmart case (No. 11-CA-067171.1), deemed to be lawful in its entirety under the National Labor Relations Act. Although that policy won’t meet the needs of all employers, it’s a useful resource against which to compare your or your client’s social media policy.
Although the memo isn’t law, it does reflect how the Board’s regional directors will attempt to enforce the law until we start seeing these issues decided through the Board’s adjudication process and in the courts.
After analyzing the memo, here are some practical recommendations for reducing the risk that your or your clients’ social media policies will be the subject of an unfair labor practices charge:
- Make sure your policy unambiguously does not prohibit a protected activity. It’s unlawful to prohibit activities protected by Section 7 of the NLRA, including communicating with co-workers about wages, hours and other terms and conditions of employment. Keep in mind that employees have rights under Section 7 whether or not they are a member of a unionized workforce. For example, the Board found a policy that warns employees: “Don’t comment on any legal matters, including pending litigation or disputes” to be unlawful because it “restricts employees from discussing the protected subject of potential claims” against their employer. Another unlawful policy is one in which “employees are prohibited from posting information regarding [Employer] on any social networking sites in any personal or group blog…that could be deemed material nonpublic information or any information that is considered confidential or proprietary.” The terms “material nonpublic information” and “confidential or proprietary” are so vague that employees could reasonably construe them to include subjects that involve their working conditions.
- Use specific examples in your policy. It’s best to be specific and to provide examples of the type of information covered by the policy, so that employees don’t mistakenly infer that communications protected by the NLRA are prohibited. An employer can legitimately prohibit employees from disclosing its trade secrets to third parties, but don’t use a broad expression like “confidential or proprietary information;” rather, use the following as your model: “Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”
- Don’t stop co-worker social media interactions. It’s unlawful to instruct employees in a social media policy to “think carefully about ‘friending’ co-workers on external social media sites” because that discourages communications among co-workers. Similarly, employer’s can’t prohibit the sending of unsolicited communications to other employees. In fact, the Board found a policy requiring employees to report receiving “unsolicited or inappropriate electronic communications” to be an impermissible restraint on employees’ right to discuss their employment conditions.
- Don’t prohibit social media complaining. An employer may not prohibit employees from complaining on Facebook or other social media sites. However, the following policy was found to be reasonable and lawful: “[K]eep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.”
Social media policies may require employees to expressly state that their social media postings are their own and don’t represent the views of their employer, but they can’t require that employees check with the legal department or HR department before posting or communicating with the media or engaging in activities protected under Section 7.
This can be a tricky area, as the law evolves with the technology, social media policies are not off the hook by simply stating that “it is not intended to infringe on employees’ exercise of their rights under the NLRA.” This won’t save an otherwise unlawful policy.
Want more guidance on employer policies on social networking? Check out CEB’s Privacy Compliance and Litigation in California, §8.67C.
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