The NLRB has been pretty hard on social media. It has also been hard on employers because it keeps finding social media policies unlawful without providing much guidance on what it wants. However, in May, the NLRB finally provided some examples of what it is seeking, and even gave an entire policy its ok.
First, to review the guidance reports, click on the appropriate link. You will be provided with the option to download or open the pdf.
August 2011 – for my analysis of this report see my post on the subject. Focused on protected concerted activity.
January 2012 – explored a mixture of issues, including protected concerted activity, over broad policies, disparagement issues.
May 2012 – 7 cases, 1 completely lawful, 6 partially lawful. Focused on the issue of whether the policies were over broad.
Simple statements such as, “don’t share anything confidential” were not acceptable. The NLRB was concerned that such a statement would chill the Section 7 right of employees to discuss their terms and conditions of employment.
So this statement, “Don’t release confidential guest, team member or company information” was too ambiguous under the rules. In addition, requiring someone to report another employee because they saw (or heard) that person providing confidential information, was too ambiguous and likely to violate rights under Section 7. This requirement to report confidential information was paired with the vague mention of confidential information in the quote above.
On the other hand, a confidentiality statement that the NLRB found acceptable was, “maintain the confidentiality of employer trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.” In addition, the NLRB found it acceptable to require respect for financial disclosure laws.
Not a Spokesperson
It is acceptable to say that an employee may not act as a spokesperson for the company, with language such as “Express only your personal opinions,” and “Never represent yourself as a spokesperson for the employer.” Also acceptable is, “Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.”
It is fine to require an employee to identify herself as an employee if she links to the employer’s website.
Don’t Tell People How to Speak
Telling people to avoid controversial topics, or informing them that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” is not acceptable because discussions about unionizing or conversations about terms and conditions of employment can become quite heated and such topics are often controversial. The language is too broad, and to have a successful policy the employer must make clear what topics are unacceptable and avoid chilling rights under section 7.
Generally forbidding people from friending or communicating with other employees/coworkers is not acceptable because it directly interferes with the ability of employees to discuss the issues they specifically have a right to discuss.
It is however ok to make it clear that harassment and other prohibited behavior is unacceptable. Acceptable language includes, “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.” But the impermissible behavior as described may not violate Section 7 or other employee rights.
A Sample Policy
For the one, and only, social media policy that the NLRB has found acceptable, see the policy quoted on pages 22-24 of the May pdf.
When writing social media policies it is crucial to be specific, watch out for anything that interferes with employee’s section 7 rights, and also, as we learned in August 2011, do not interfere with protected concerted activity. Be careful to keep the policy simple, straightforward and unambiguous.