Firms may wonder why their social media policies are a cause for concern.
What's wrong with a company prohibiting its employees from bad mouthing their place of employment online? Shouldn't employees be loyal to their workplace?
Unfortunately, it is not that simple. The law protects employees who engage in a certain kind of complaining.
Close attention from the NLRB
At its most basic, Section 7 of the National Labor Relations Act (NLRA) gives employees the right to engage in concerted activities for their "mutual aid or protection," including communicating with each other about the terms and conditions of their employment and communicating to third parties (e.g. customers and the public) about ongoing labor disputes.
The National Labor Relations Board (NLRB) is paying careful attention to social media policies that could be seen to chill the exercise of Section 7 activity, and therefore violate Section 8(a)(1). This scrutiny and Section 7's protections apply equally to unionized and non-unionized workforces.
The guidance below stems from various National Labor Relations Board decisions. This is an evolving area, so be sure to consult counsel before you implement a social media policy and make discipline or termination decisions based on social media use.
1. Do not include language in social media policies that prohibit an employee from mentioning his or her employer or saying negative things about the company on social media. Your policy should not prohibit defamation or disparagement of the employer or negative discussions about the employer generally.
Note, however, that the NLRB approved a social media policy provision prohibiting defamation or discrediting of an employer's product.
2. Social media policies should not ban non-commercial use of an employer's logo or trademark in social media posts or photographs of an employer's premises. Nor can a policy prohibit the photographing or videotaping of an employer's premises. Cases have held that the use of trademarks to protest or parody an employer or its products do not violate trademark usage.
3. Companies who use social media to market or sell products or enhance the company's reputation should have a different set of rules for employees who manage the company's social media. That should include protections that ensure that social media control remains with the company if those employees leave.
4. The social media policy should not require that the employer review or approve all posts.
5. Include a provision that confirms the employer's sexual harassment and anti-discrimination policies apply equally to social media activities.
6. While employers can prohibit social media use during work time, they can't ban it during break time if it is accessible.
Note that this is different from prohibiting use of company equipment for non-work-related purposes. Be careful about applying this policy inconsistently, especially if the employees regularly use the Internet for personal reasons during working time.
Considering placing a firewall to block access to social media sites from company computers or wireless Internet.
7. Include a disclaimer or "savings clause" in the social media policy that resembles the following:
"This policy is not intended to interfere with employees' rights under the National Labor Relations Act. Nothing in this policy should be interpreted to prevent, interfere with, or otherwise restrain an individual's legitimate exercise of his or her Section 7 activities under the National Labor Relations Act. This policy does not apply to discussions or activities involving the terms and conditions of employment."Such a disclaimer will not make an unlawful provision lawful, but is still important to include.
In other words, the NLRB's current view is that a savings clause will not prevent a finding that an employer has committed an unfair labor practice if the NLRB determines that a social media policy is too broad or administered in a manner that restricts Section 7 rights. Nevertheless, the prevalent view is that it is better to have a savings clause than not.
8. In one case, the NLRB provided the following guidance to keep in mind when drafting or evaluating a particular social media policy provision: "Rules that are ambiguous as to their application to Section 7 activity and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights are unlawful.
In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct such that they could not reasonably be construed to cover protected activity are not unlawful."
9. The tips above are designed to help draft a conservative policy that the NLRB will likely find does not violate the NLRA. You may want to include broad, more prohibitive language, but beware that the NLRB may find fault with the policy.
10. Regardless of whether you have a social media policy, be sure to consult with counsel before you make a disciplinary or termination decision based on social media use.
Employers will often overreact to what they perceive to be negative or disloyal comments by current or former employees. It may be clear to your counsel that the conduct at issue falls within Section 7's protection.
In addition, depending on how you discovered the post, your counsel may have other concerns; the method of discovery may implicate privacy issues or violate state law. Some states prohibit asking an employee to provide user IDs and/or passwords.
It will also provide your counsel the opportunity to confirm that you are making social media-related decisions in a non-discriminatory/non-retaliatory manner.
Jennifer Neumann is senior counsel with Foley & Lardner LLP, and is a member of the firm's Labor & Employment Practice and Automotive Industry Team. A version of this article originally appeared on TLNT.com.