1 – Blanket prohibitions on discussing company business: Some companies, perhaps to avoid difficult line-drawing exercises, adopted social media policies that flatly prohibit the employee from discussing the company or its business in social media. It’s not surprising the NLRB would find such a policy violates employees’ rights to discuss work with each other, but we at PulsePoint think it’s bad business anyway. Sure, social media poses some risks, but it also creates opportunity to turn your employees into ambassadors. Just as you never would have attempted to prohibit your people from discussing work with friends (unless you’re the CIA), it’s pointless to try to do the same thing online.
2 – Defamation: This is one of those surprise areas. Policies against defamation are a staple of nearly all policies, and you would think they would be unobjectionable. But the NLRB is concerned that overly broad interpretations could inhibit employees from saying anything bad that isn’t necessarily, from a legal standpoint, defamatory. The solution appears to be narrowly tailored language, with helpful examples.
3 – Prohibitions against saying bad things about the employer: Many companies have inserted into their policies prohibitions much broader than defamation. They extend to “disparaging comments,” “unprofessional communication,” “disrespectful conduct,” etc. All of them are problematic. The better approach may be to prohibit disparagement of the employer’s products or services, rather than disparagement of the employer as a whole.
4 – Misuse of company assets: This is another staple of social media policies that can cause a problem if it goes too far. Employees have the right to communicate with each other (provided it doesn’t unduly interfere with their work) about wages, benefits, and working conditions.
5 – Trade secrets, proprietary information, and litigation: Again, the important thing is to draft these provisions narrowly. The NLRB has said that a ban on the use of “confidential information” goes too far if it prevents employees from talking about their supervisor. Similarly, a policy the said “don’t comment on legal matters” was too broad because the employees have the right to talk about labor or HR-related disputes.
6 – Use of logo and trademark: Social media policies often admonish against the use of corporate logos and trademarks, but it is well-established law that employees are permitted to identify their employer by its logo in the course of labor disputes.
7 – Identification of employee status, disclaimers: Some policies require employees to identify their status as employees when posting on a topic related to work; most forbid it (or anything that would imply the employee is speaking on the company’s behalf) and some require a disclaimer that the individual is not speaking on the company’s behalf. The NLRB has said disclaimers are fine when there is genuine potential for confusion, but a requirement that a disclaimer be used in every social media posting was found to be overly broad.
8 – Work-related vents and rants: Threats and disparagement of the company’s customers can clearly be prohibited, but vents and rants against supervisors may be protected. The NLRB’s rulings here aren’t a model of consistency, and the distinction between an unprotected rant and “protected concerted activity” may come down to whether a tweet or Facebook post generated a response from another employee.
9 – Discrimination, harassment, and bullying: With all the attention bullying has been getting recently, many companies are including anti-bullying provisions in their social media policies. These can be problematic, because the protected airing of worker grievances may feel like bullying to whomever is on the receiving end of the complaints. Context and specificity are key; broad admonitions to avoid “offensive, demeaning, abusive, or inappropriate remarks” have been ruled to go too far.
10 – “Don’t forget your day job:” Some corporate social media policies remind workers not to spend so much time on social media that they neglect their duties. Even the NLRB recognizes that otherwise protected activity may be disciplined if it genuinely interferes with the employee’s work. So these provisions are probably fine.
11 – Interplay with disclosure regulations: The NLRB has shown a willingness to defer to social media policies intended to enforce compliance with SEC disclosure rules.
12 – Employee communications with government, media: Companies have the right to limit those people who are authorized to speak for it, and the NLRB has upheld a media policy “that simply seeks to ensure a consistent, controlled company message.” But a rule prohibiting “any contact with the media” as well as “any presentations, speeches or appearances” relating to the employer was struck down. It also struck down a provision that required reporting of all government contacts.
13 – Monitoring and exhaustion of internal remedies: A policy requiring employees to “report any unusual or inappropriate social media activity” was found unlawful in part because management cannot encourage employees to report union activities. Nor can the social media policy require employees to exhaust internal corporate remedies before airing their grievances socially.
14 – Non-job-related statements: Statements on social media that aren’t job related are generally outside the scope of Federal labor law. But efforts to discipline an employee for objectionable social media behavior can still run afoul of other laws such as those governing discrimination and various state laws.
For a more detailed discussion of these 14 points, and specific citations to the dozens of NLRB decisions that we examined, you may refer to Social Media Policies & Federal Labor Law: A Moving Target, which PulsePoint Group published in January 2013.
The foregoing does not constitute legal advice and in specific cases advice from an experienced attorney should be obtained.
Bill Feldman, J.D. is a Senior Counselor with PulsePoint Group and is a member of the District of Columbia Bar.