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Did you know that 76% of the Inc. 500 do not have social media policies?

Unless you cheated and previously read that study, of course you didn’t, but that’s not the point.  The point is employers are wise to craft a corporate social media policy outlining what employees can and cannot post online about the workplace. However, anything too broad will violate an employee’s ability to engage in activities without fear of employer retaliation, per the National Labor Relations Board (NLRB).

Social Media Policies and the NLRB

We know what you’re thinking, “You guys are complete geniuses ahead of your time, but the NLRB only comes into play with unionized employees,” right?  Wrong.

The NLRB will step in even when a company’s employees are non-union, if employees’ ability to engage in concerted activity is somehow infringed upon, which is a very real risk employers run with social media policies.  For this reason, the NLRB has issued multiple reports this year on various challenges to employers’ social media policies, in an attempt to rein in what has become a hot and controversial topic in the workplace.

The NLRB has created three separate reports offering guidance to employers – the first social media policy report by the NLRB was released on August 18, 2011. The second report released on January 24, 2012, covers 14 cases, half of which involve questions about employer social media policies. In the third report released on May 30, 2012, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful. Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.

In these cases, big-budget employers with teams of lawyers, such as GM, Target, and DISH Network, have even been found to have social media policies infringing on employees’ rights.  Ouch.

Four Social Media Policy “Don’ts”

The pointers that must be taken away from these reports are:

1)  Social media policies must not be overbroad and potentially affect or limit an employee’s ability to engage in protected complaints and criticisms about the employer’s workplace, such as certain classes of individual’s being unjustly underpaid or the mistreatment of employees.  If the policy is found to be too broad, it runs afoul of the National Labor Relations Act and the employer will have a not-so-hot date with the NLRB.

2)  Don’t think a catch-all disclaimer or savings clause will save your policy.  Some employers tried getting around an otherwise overbroad policy by including a disclaimer stating that nothing in the policy should be construed as limiting an employee’s right to engage in protected activity or limiting an employee’s rights as provided under the National Labor Relations Act.  Think that worked?  Not a chance.

3)   The kiss of death is if a policy may be construed as “tend[ing] to chill employees” in their exercise of their rights under the National Labor Relations Act.  This is akin to the caution against an overbroad policy.  For example, a provision in GM’s social media policy prevented employees from posting anything that could be “misleading” about the company.  The NLRB found this to be overbroad, in that it could be stretched to cover criticisms of working conditions, which is protected under the NLRA.  Similarly, its provision that employees should think twice about “friending” coworkers could “discourage communications among co-workers.”

4)    Even if the policy does not tend to “chill” employees, the NLRB uses a 2-prong analysis of social media policies.  First, the NLRB analyzes the policy to determine if it facially chills employees in the exercise of their rights under the NLRA.  Second, assuming the policy does not violate the first prong, the NLRB reviews the policy to determine whether:

  • The employer has used the policy to restrict employees’ protected activity;
  • The employer created the policy in response to employees’ union or otherwise protected activity; or
  • The employer’s policy could be construed by an employee as prohibitive of protected activity (highly subjective, we know).

If you are an employer and you have a social media policy, review it now.  Better yet, have an employment law attorney who actually knows about social media policies to review it for you.

Does your workplace have a social media policy?  Do you think it’s overbroad?  Has it been reviewed lately?  Let us know and start a discussion.

 

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