Moving Target of Compliance
Over the past few years, we have written about the NLRB’s focus on private employer social media policies (see the references to our past HR Insights Blog posts below). The decisions are hard to reconcile, and employers (and their advisors) are left to guess what may be seen by the NLRB to be an unlawfully overbroad interference with employee rights. So much seems to turn on the use of common terms and phrases. The outcome of a particular case also seems to turn on the makeup of the NLRB panel deciding the case (see our HR Insights Blog post “NLRB Says Negative Attitude Rule Is OK”). And now a decision by an NLRB Administrative Law Judge suggests that an employer’s policy that one might think was overbroad is actually OK. Of course, the NLRB may still have the final say and modify the ALJ’s opinion, but for now, the policy that was considered and found to be lawful is a good place to start in reviewing your policy for compliance.
This Policy Was Lawful According to the Administrative Law Judge
Here is the employer’s policy that the ALJ considered and found to be OK.
Social Media Policy
Social media includes all forms of public, web-based communications and expression that brings people together by making it easier to publish content to many individuals. The Social Media Policy applies if you are authorized to represent the Company on social media platforms or if you choose to make references to the Company, its affiliates or officers when you are using social media in a personal capacity. In order to post on external social media sites for work purposes, you will need prior approval from the Vice President of Marketing and acknowledge receipt of the Company’s Standards for Social Media Representatives.
While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to ensure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.
If you identify yourself as a Company employee or discuss matters related to the Company’s business on social media, please remember that although you may view your site as a blog or a personal project and medium of personal expression, some readers may nonetheless view you as a de facto spokesperson for the Company. You must make it clear that the views you express are yours alone and that they do not necessarily reflect the views of the Company. To help reduce the potential for confusion, please put a disclaimer in a prominent location on your page. For example, “The views expressed on this website/blog are mine alone and do not necessarily reflect the views of my employer.”
Without prior written approval from the Vice President of Marketing, no employee shall use any words, logos, or other marks that would infringe upon the trademark, service mark, certification mark, or other intellectual property rights of the Company or its business partners. All rules that apply to employee activities, including the protection of proprietary and confidential information, apply to all blogs and online activity.
Things to Think About
Remember that the above policy has not yet received formal approval of the NLRB. So, the policy as written is likely OK…maybe. As we have seen, the NLRB’s decisions are hard to predict, especially in the areas of social media and other rules restricting employee communications and interactions. Nevertheless, it is a good idea to take a look at current social media policies to see how closely they might mirror this one that for now, seems to be OK in the eyes of at least one Administrative Law Judge.
Reference: Landry’s, Inc. (NLRB Div. of Judges June 26, 2014).