In a series of important rulings, the National Labor Relations Board ("NLRB") has provided guidance regarding the extent to which private employers may regulate aspects of an employee's social media activities consistent with the National Labor Relations Act ("NLRA"). The NLRA protects employees' rights to engage in "concerted activity" for the purpose of collective bargaining, or for other mutual aid or protection, and prohibits employers from interfering with, restraining, or coercing employees who are exercising rights guaranteed under the NLRA. In light of this recent guidance, in addition to recent judicial and legislative developments, it is imperative to have social media policies that clearly define what employees can and cannot do when using social media for both professional and personal purposes. But as the NLRB rulings make clear, a company's policy must also respect certain employee rights or it may be deemed at least partially unenforceable.
In their first two rulings, the NLRB found that the two at-issue social media policies contained overly broad language regarding the type of social media activity that was regulated by the employer and failed to carve out an exclusion for communications protected under the National Labor Relations Act ("NLRA"). One policy, in relevant part, stated that employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person's reputation or violate the policies outlines in company's employee agreement, may be subject to discipline, up to and including termination of employment. Because the policies could reasonably be construed to prohibit activity protected under Section 7 of the NRLA (e.g., concerted communications) and "would reasonably tend to chill employees" in the exercise of their rights to engage in "concerted activity" as set forth in Section 7 of the NLRA., the policies were deemed unlawful.
In a separate ruling, the NLRB opined that an employee may be terminated for activity that is regulated by an employer's lawful social media policy, including posting an entry on the employee's Facebook page. The at issue Facebook post was not part of any communication with another employee, and it did not have a connection to any of the employee's terms and conditions of employment. As such, the NLRB found that the post did not fall under the umbrella of protected activity set forth in the NLRA.
Recommendations Regarding a Corporate Social Media Policy
The recent NLRB rulings, in addition to recent judicial and legislative developments, highlight the need for companies to utilize social media policies with clear, narrowly tailored language to demarcate the boundary between acceptable and unacceptable use of social media forums. When constructing a social media policy, it is also important to balance numerous factors including, for example, protecting concerted employee activity under the NLRA, applying anti-violence, harassment and discrimination policies, protecting company confidential information, and avoiding undue responsibility for an employee's own statements.
Employers are encouraged to explicitly set forth exceptions in their social media policies for activities protected under the NLRA. These exceptions may be included directly in a social media policy or in another employee communication in which the policy is included or incorporated by reference (e.g., an employee handbook).
Further, prohibiting an overly broad range of activities in a social media policy may raise red flags with the NLRB. Examples of such broad activity include "talking badly" about an employer, posting information that "damages" or "disparages" the employer, disclosing "inappropriate" information about an employer, etc. It is currently unclear if an explicit exception for protected activity may allow for broader employer regulation of social media activity. Even when including an explicit exception for protected activity, employers should still aim to avoid such broad language and provide examples in their policies to give context to what kinds of social media activity fall under a company social media policy.
Employers are also encouraged to apply anti-violence, harassment, and discrimination policies to social media activity via their social media policies. A thorough social media policy should include confidentiality and proprietary information restrictions as well. Further, social media policies should require employees to state that their opinions are their own (and not the opinions of their employers) when disclosing their professional identity via social media participation. As mentioned above, these employee regulations may be included directly in a social media policy or in another employee communication in which the policy is included (e.g., an employee handbook).
For a more detailed discussion of the NLRB rulings and best practices, please see our client alert entitled First NLRB Decisions on Social Media Give Employers Cause to Update Policies, Practices posted October 10, 2012. For additional information on recent judicial and legislative developments, please see our client alert entitled Drawing the Line Online: Employers' Rights to Employees' Social Media Accounts posted October 16, 2012.
The legal requirements related to employer regulation of employee social media activity are continually changing.