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 A Refresher On Social Media Policy

A legal expert explains the importance of policies Recently issued by the National Labor Relations Board.

 

Social media is a vital part of everyone’s lives today on both a professional and a personal level. For human resource professionals, however, there exists some confusion about what constitutes a permissible social media policy or rule and what an employee can safely “post” on a social media website about his or her employer without being subject to discipline and/or termination.
 
In fact, the National Labor Relations Board (NLRB) issued its first decision on this topic only last September. Providers should be aware of the latest NLRB developments when crafting their social media rules and/or policies.

Costco’s Broad Social Media Policy

NLRB, in order to determine whether a work rule violates Section 8(a)(1) of the National Labor Relations Act (NLRA) and is thus an unfair labor practice, examines whether the rule tends to chill employees in the exercise of their Section 7 NLRA rights. Section 7 rights include the right to join unions, to bargain collectively, and to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Board Makes First Policy Judgment

Last September, NLRB, in its first case directly addressing social media policy, held in Costco Wholesale Corp. that an overly broad social media policy promulgated by Costco violated Section 8(a)(1) of the NLRA and ordered Costco to rescind or modify that policy.
 
The policy stated that “[e]mployees should be aware that statements posted electronically … that damage the company [Costco], defame any individual, or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”
 
NLRB found that the “broad parameters” contained in the policy would result in employees refraining from engaging in certain communications (such as those that would be critical of Costco’s treatment of its employees) that are protected under Section 7 of the NLRA.
 
NLRB noted that this broad rule did not contain language that would have restricted its application to conduct (malicious, abusive, or unlawful) that an employer can safely prohibit.
 
The implication being, of course, that had it contained such restrictive language, the rule might have been found lawful.

Firing Employees For Facebook Comments Found Unlawful

In Hispanics United of Buffalo, Inc., NLRB recently held that the employer violated the NLRA by firing employees for Facebook comments they wrote in response to a co-worker’s criticism of their job performances.
 
One worker posted, on her Facebook page, that another employee had complained about her and her co-workers’ performances; she asked other employees to comment about this post on her Facebook page.
 
The employer fired both the worker who made the initial post on her page and the four others who then posted comments. It contended that their remarks constituted “bullying and harassment” of a co-worker and violated the employer’s “zero-tolerance” policy of this conduct.
 
NLRB held, however, that the employer violated the NLRA by firing the five employees, and it did not find the Facebook comments to be either a form of bullying or harassment.
 
In a nutshell, the employees were engaged in concerted activities for the “purpose of mutual aid or protection,” and thus their conduct was protected. NLRB has long held that an employer cannot fire employees for engaging in discussions about job performance.

NLRB’s Prior Reports Address Social Media Rules

Prior to the Costco Wholesale Corp. decision, NLRB’s acting general counsel issued three reports on social media. Some examples contained in the reports are as follows:
 
 ■ Policy provisions stating that, if an employee posted something about an employer, “you must also be sure that your posts are completely accurate and not misleading,” were found to be unlawful. The terms “completely accurate and not misleading” were found to be overbroad as they could apply to discussions of the employer’s policies and treatment of its employees, which, as long as they are not malicious, are protected activities.
 ■ A rule that prohibited “inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct” was found lawful as it prohibited plainly egregious conduct and there was no evidence that the employer had used it to punish employees for exercising their protected rights.
 ■ A rule that required employees to maintain the confidentiality of an employer’s trade secrets and confidential information was found lawful because: 1.) employees have no protected right to disclose trade secrets; and 2.) the rule contained sufficient examples of confidential information (for example, information regarding the development of systems, products, and technology) for employees to understand that the rule did not apply to “protected” discussions of working conditions.
 ■ Policy provisions stating “[t]hink carefully about ‘friending’ co-workers … on external social media sites” and “report any unusual or inappropriate internal social media activity to the system administrator” were both found unlawful because: 1.) the “friending” provision would discourage communication between co-workers and thus interfere with protected Section 7 rights; and 2.) the reporting provision could be reasonably construed to encourage employees to report to management on the union activities of their co-workers.

Drafting Social Media Policies Tricky

Providers should draft their social media policies so that they do not contain broad prohibitions about workplace concerns that do not thereafter provide examples of activities that an employer may legitimately prohibit.
 
Thus, if a provider has a rule such as “do not post comments that damage the company or an individual’s reputation” it should then give examples of conduct specifically prohibited by the rule, such as the disclosure of trade secrets or sexually harassing comments.
 
Most importantly, a provider should ensure its policy is carefully reviewed by legal counsel.
 
Andrew I. Bart is an attorney with Tenzer and Lunin, a New York City law firm. He may be reached at (212) 262-6699 or at andrewibart@gmail.com.
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