As a New York Times article recently reported, several recent NLRB decisions have reined in efforts by companies to restrict – or even forbid – discussion of company business on social media.

But the cases involve a variety of different settings – for example, did the social media activity involve concerted activity? Did it involve work conditions? Was it even job related? Each of those circumstances raises different questions.

So we’ve dug a little deeper. We’ve gone through the cases identified in a report issued by the NLRB’s General Counsel and analyzed them to see how they affect 13 typical categories covered by corporate social media policies. Today’s blog post will look at the overall trend in this area, and in the next post we will look at each of those categories individually and offer a POV for each, as well as some overall guidance for moving forward in developing your own social media policy.

Before diving in, a few things to consider:

First, this is general guidance and not legal advice. Before adopting a formal social media policy or undertaking disciplinary activity based on one, make sure to seek the counsel of an experienced lawyer. This is a new and rapidly evolving area of the law and not all lawyers are knowledgeable in it, though a growing number are.

Second, what we’re discussing here are policies that address employee social media activity that is not on the company’s behalf. The company’s right to restrict what employees say in their official capacity, on the company’s behalf, is much greater than its ability to limit what employees say for themselves.

Third, it’s important to understand what is not involved here: the First Amendment. The First Amendment only applies to government action, so for private sector employers, that is generally not a factor except for some interplay in defamation cases (especially if the boss is also a public official, like Mike Bloomberg). Because this is, for the most part, a statutory rather than constitutional matter, different rules apply.

And finally, don’t think that because this involves the NLRB that it only applies to unionized workplaces or efforts to unionize. The applicable Federal law, Section 7 of the National Labor Relations Act, protects “concerted activity” of most private sector employees, including discussions relating to their wages, benefits or conditions of employment.

So, with that as background, let’s take a look at what is going on.

Many companies have adopted social media policies that address employee social media activity undertaken by the employee on his or her own behalf. Some are cast in the form of “friendly” guidance, while others carry potential penalties, including termination, for their violation.

To varying degrees, they either discourage or completely prohibit the discussion of the company’s business online, specific references to the company, discussion of issues in which the company is directly involved (e.g., a bank that might prohibit its employees from discussing the foreclosure crisis online), discussing or naming other employees, and so forth. Many rules prohibit “inappropriate” discussion of the company, or any social media activity that may harm the company’s reputation. As you will see in the next post, these can be problematic.

The New York Times quoted NLRB Chairman Mark G. Pearce saying, “Many view social media as the new water cooler.” Except it’s a water cooler that exists not just at the office, but also anywhere an employee has a computer or smartphone. And what is said doesn’t just vanish into the air around the water cooler, but is broadcast to the world, lives forever and is fully searchable. These are characteristics too many of us forget at crucial moments.

Moreover, protection of employees’ right to converse in a public online forum can conflict with initiatives to protect individuals against harassment or bullying. In one of the cases cited by the New York Times, the employees’ speech that the NLRB described as “protected concerted activity” was a series of expletive-laden online rants against a supervisor [1]. While the supervisor (and the company) may have believed the online rants constituted not only a violation of the social media policy, but also harassment, the NLRB (in a split decision) said federal labor law protected it.

Does this mean that all non-official employee social media activity is beyond reach of corporate social media policies? No. But it does mean you need to be smart about drafting the policies and in enforcing them. In the next post, we will review 13 categories commonly used in corporate social media policies, how the NLRB has viewed them and what we think may be the best approach. We will also touch on the growing thicket of social media guidance from other federal agencies and provide some thinking on how to move forward.

1. Hispanics United of Buffalo, Dec. 14, 2012, www.nlrb.gov/category/case-number/03-ca-027872

Bill Feldman, J.D. is a Senior Counselor with PulsePoint Group and is a member of the District of Columbia Bar.