Although there has not been much attention or guidance in State or Federal case law, the topic of social media has received almost unprecedented attention by the National Labor Relations Board (NLRB). The Acting General Counsel, Lafe Solomon, has issued three reports on social media in the past year. The first report detailed the outcome of the Board’s investigations into fourteen cases involving the use of social media and employers’ social and general media policies. The focus in each of these cases was whether the online communications between employees about working conditions constituted “concerted activity” (when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment). If a communication constitutes “concerted activity”, it means an employer cannot discipline the employee for such conduct.
Since then, Solomon has issued two further reports regarding dismissal of employees pursuant to company policies on social media. The main lessons for employers from these reports are:
- social media policies should not be so broad that they prohibit or deter the kinds of activity protected by the National Labor Relations Act, such as a genuine discussion of work conditions; and
- an employee’s comments or postings on social media sites are generally not protected if they are individual complaints not made in furtherance of generating group discussion among employees.
On September 7 2012, the NLRB issued its first opinion invalidating an employer’s electronic posting rules in Costco Wholesale Corp. Although the Costco decision’s legal reasoning is consistent with Solomon’s prior guidance discussed in the three reports, the difference is that the guidance now has teeth. The decision held that Costco’s rule prohibiting employees from making statements that “damage the Company… or damage any person’s reputation” was overly broad and invalid because it could “chill the exercise [of an employee’s] Section 7 right” to engage in “protected, concerted activity”.
Unfortunately, much like the NLRB’s guidance on social media thus far, the decision fails to outline acceptable methods of deterring employees from potentially illegal and damaging public statements. So, the question looms: what is an acceptable social media policy?
An analysis of the NLRB’s three reports and its most recent decision dictates first and foremost that a policy cannot prohibit a wide range of conduct such as a general statement “prohibiting disclosure of the company’s trade secrets” without providing specific examples. Further, the earlier reports found the following types of language in policies to be too broad:
- general language prohibiting the release of confidential information;
- general language prohibiting any commentary on legal issues at the company;
requiring employees to respect the privacy of others;
requiring employees to exercise personal responsibility; and
requiring that employees treat co-workers with respect or use a friendly tone.
As with the language in the Costco policy, the problem with these statements is that an employee could interpret them as limiting their ability to discuss workplace conditions with coworkers. However, what the NLRB Costco decision confirms is that broad language providing specific examples of what is and is not permissible is acceptable. For example, language in a social media policy prohibiting employees from inappropriate postings which include “discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct” passes muster because it identifies only plainly egregious conduct and thus would not be considered to be deterring employees from engaging in protected activity.
In sum, although employers are usually counseled to draft broad policies that cover a range of conduct, here, the opposite is true and there is no “one size fits all” policy. As a result, employers should examine their policies in light of what specific issues their business face and draft a policy with those specifics in mind.