"It took radio 38 years to reach 50 million listeners.

Terrestrial TV took 13 years to reach 50 million users.

The Internet took four years to reach 50 million people.

Less than four years after facebook became available to the general public, the social networking site had over 500 million users."

- "Social Media Tool Kit," Practical Law Company 2011

Social media has grown more rapidly than any other communications medium. In an effort to protect their companies and employees, many employers have implemented policies governing such communication in the workplace. However, this rapid growth has placed employers in a precarious position because the laws relating to how such communications can be regulated are still in their infancy and are continuing to evolve.

The Scrutiny of Social Media Policies and the NLRB

Recently, the National Labor Relations Board (“NLRB”) has been actively scrutinizing social media policies and determining that many of them constitute unfair labor practices under the National Labor Relations Act (“NLRA” or the “Act”).  Accordingly, as this year comes to a close, now is a good time to review your current social media policy and ensure that it conforms to recent NLRB rulings.

Section 7 of the NLRA protects certain rights of both union and nonunion employees, including “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….”  The NLRB has handed down a number of recent decisions indicating that many social media policies infringe upon the protections afforded by the NLRA.

According to the NLRB, an employer violates the NLRA by maintaining a rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights.”  The NLRB conducts a two-step inquiry to determine if a rule has such an effect.  First, a rule is unlawful if it explicitly restricts Section 7 protected activities.  Second, a rule is unlawful if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

On October 19, 2012, the NLRB issued an Advice Memorandum analyzing a policy from Cox Communications, Inc. and provided some guidance on social media policies.  In the Memorandum, the NLRB stated as follows:

Rules that are ambiguous regarding their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that they do not restrict their Section 7 rights, are unlawful.  In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, so that they would not reasonably be construed to cover protected activity, are not unlawful.

More recently, on November 14, 2012, an NLRB Administrative Law Judge determined that DISH Network Inc.’s social media policy violated the NLRA after finding that the policy (1) banned employees from making “disparaging or defamatory comments about DISH Network;” and (2) prohibited employees from engaging in negative electronic discussion during “Company time.”  This ruling comes on the heels of a similar decision regarding Costco Wholesale Corporation’s policy, which was invalidated, in part, for prohibiting employees from electronically posting statements that “damage the Company … or damage any person’s reputation.”  These policies were deemed overly broad as they were determined to potentially discourage employees from engaging in protected activity, such as discussing wages or working conditions.  Furthermore, in accordance with other recent NLRB rulings, these decisions also indicate that valid social media policies should include limiting language expressly stating that the policy is not intended to interfere with an employee’s Section 7 rights.  In short, broadly written social media policies will most likely be considered unlawful under the standards articulated by the NLRB.

Based on the current rulings, what does all this mean to your company’s ability to regulate an employee’s use of social media?  While we still do not have a complete picture of what constitutes a lawful social media policy, we are able to discern from the NLRB’s rulings the types of provisions that may render the policy valid.  The bottom line is that your policy cannot be broadly worded, but rather, must be geared specifically towards the actions you are trying to restrict while clearly emphasizing that the policy is not intended to interfere with an employee’s right to engage in concerted activity. 

Below are some examples of what to avoid and what to keep in mind as you review your current social media policy:

How to ensure that your Social Media Policy complies with the NLRA

1. Avoid generic or overbroad policies.

Your policy must be specifically structured to your company’s operations and should include specific examples of the types of communications that are prohibited. For example: policies prohibiting an employee from making “disparaging or defamatory comments” have been routinely rejected. However, in the October 19th Advice Memorandum, the NLRB validated Cox’s policy prohibiting communications “about customers, coworkers, supervisors, the Company, or Cox’s vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of … [any] legally recognized protected basis”.

2. Be sure to include a specific savings clause.

The clause cannot merely state the policy is not intended to restrict an employee's Section 7 rights, but rather, must specifically describe those rights. For example, the savings clause in Cox's policy was deemed sufficient to aid the employees in understanding what rights are protected. That policy stated "[n]othing in Cox's social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment."

3. Avoid blanket prohibitions on the release of confidential information.

While you are permitted to protect your company’s trade secrets and proprietary information, blanket policies are often struck down because they could potentially discourage employees from discussing information relating to their terms of employment, such as wages or working conditions. In order to survive NLRB scrutiny, the prohibition must be specific. For example, the Cox policy was found to be lawful because it directed employees to “respect the laws regarding copyrights, trademarks rights.”

4. Be cautious about prohibiting an employee from posting photos or videos.

Such policies have been deemed unlawful as an employee could reasonably interpret the provision as forbidding the use of photos or video showing employees engaging in protected activity, i.e., picket lines.

5. Eliminate policies that could “chill” an employee’s right to discuss protected rights, such as working conditions or union activity.

Policies that require permission before posting certain content, prohibit employees from commenting on any legal matter or pending legal disputes, or guide employees regarding “friending” co-workers are often deemed to be unlawful.

With the many recent NLRB rulings, and doubtless appeals that will follow, there remains much uncertainty regarding the extent a company may regulate social media. Until the courts have more opportunities to assess these rulings and we are provided with better guidance, the best practice is to take a conservative approach regarding the social media policy you choose to implement. Our firm will assist with review and creation of social media policies to ensure compliance with current regulations.