Much has been written about employers’ concern with employees’ use of social media outside of work, particularly when employees express negative sentiments about their employers or co-workers, and when employees share employers’ confidential information. As Twitter, Facebook, and other sites grow in popularity and influence, many employers have created policies to address appropriate use of these services.

Policies help establish legitimate parameters and expectations. But employers must be careful to comply with evolving legal issues arising in this new area of employment law. As we discussed in an article in November 2010, for many nonunionized work environments, these restrictions come from an unexpected sourceäóîthe National Labor Relations Board (NLRB), the federal entity that regulates collective bargaining.

The NLRB’s Role in Regulating Social Media

The National Labor Relations Act (NLRA) prohibits employers from infringing on the rights of employees to engage in “concerted activities”-to speak with each other (and potentially outsiders like unions) about the terms and conditions of their employment (called “Section 7 rights”). In the past year, the NLRB’s Office of the General Counsel has released three memoranda, summarizing cases against employers accused of violating Section 7 rights through their regulation of social media. In the most recent memorandum in May 2012, the NLRB focused on employer policies that may violate the NLRA.

What the NLRB Says About Social Media Policies

The NLRB is primarily concerned with policies that may have a “chilling” effect on employees’ exercising Section 7 rights-in other words, policies it believes will dissuade employees from speaking with each other about work-related conditions like pay and benefits. The May 2012 memorandum emphasizes ambiguous or broad restrictions may have such an effect, and thus violate the NLRA.

In keeping with this philosophy, the NLRB invalidated several employers policies with general prohibitions, such as a restriction on sharing “confidential information,” including personnel information; an advisement that “[o]ffensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are online;” an instruction to post only “completely accurate and not misleading” information about the employer; and a general encouragement to address problems or issues directly with coworkers, rather than using online forums to air grievances. The NLRB found that employees could interpret these and other broad restrictions to prohibit the exercise of Section 7 rights.

A “Safe Harbor” Social Media Policy

So, what social media communications may an employer regulate without running afoul of the NLRA? The May 2012 memorandum includes a “safe harbor” policy approved by the NLRB. The policy advises employees they are responsible for what they post on social media, reminds them of legitimate work rules (with specific examples), instructs employees to treat others whom they encounter as part of their jobs respectfully, encourages employees to provide truthful information and to correct mistakes when they make them, and reminds employees not to use work time or work resources to post on social media. The model policy is posted on our blog at http://tinyurl.com/ctakwk6.

Other Policies Are Also Affected

The NLRB’s focus on allegedly vague policy language should prompt employers to examine other policies that may likewise be interpreted to “chill” Section 7 rights. For example, confidentiality policies should not prohibit sharing “personnel information.” “Open door” or open communication policies should not suggest employees must use internal complaint procedures rather than the Internet to address workplace problems, and general conduct policies cannot vaguely prohibit “inappropriate” conduct or “disparaging” remarks (both of which have been invalidated by previous NLRB guidance).

Drafting Your Own Policy

An employer drafting or revising its social media policy should review the NLRB’s “safe harbor” policy for guidance. Also, the employer should follow the NLRB’s admonition to avoid general or ambiguous restrictions, because employers may interpret such restrictions to prohibit or prevent them from discussing the terms and conditions of employment. To help employees have a clear sense of acceptable conduct, employers should include specific examples of the type of behavior prohibited.

Employers should also remember that just because the NLRB is attempting to restrict employers’ policies, does not mean employers cannot take action when an employee uses social media inappropriately-provided such use is not protected by the NLRA or other laws. For example, if an employee uses social media to make “inappropriate” sexually suggestive comments to a coworker or client, the NLRA does not prohibit the employer from disciplining the employee. The policy might not be able to say “inappropriate” comments are prohibited, but the employer may take action against such comments. Sexually suggestive comments are not “concerted activity” protected by the NLRA.

Also, employers should keep in mind that the NLRB’s protections do not extend to supervisory personnel. To help avoid some of the potential pitfalls with social media use, some employers choose to limit contact between supervisory personnel and subordinates on social media.

Finally, employers must keep abreast of this changing area of the law. As the popularity of social media increases and the ways to use it diversify, employers should be prepared to make adjustments to their policies and practices to comply with legal requirements and workplace realities.

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