Client Bulletin #473

7.12.12

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As Constangy previously reported here and here, the Acting General Counsel of the National Labor Relations Board recently issued a third memorandum specifically addressing the lawfulness of seven social media policies. The inconsistencies contained within the report, as well as its two predecessors, have left many – pundits and employers alike – scratching their heads. The good news is that the most recent report closes by providing discussion about and a copy of a policy that "passed" – from Walmart – which employers can use as a model for their own policies. Because our prior publications on the subject were relatively brief, the following is a more in-depth look at the position of the NLRB and the courts on social media policies.

What does the NLRB have to do with social media?

Like many others, you may be wondering why the NLRB is focusing so much time and energy on social media. After all, the NLRB largely concerns itself with unions – things like conducting elections or investigating and addressing unfair labor practices. However, according to the NLRB, many social media policies inhibit "protected concerted activity."

The NLRB has found that many employers have violated the Section 7 rights* of their employees by implementing "overly broad" or "ambiguous" social media policies that could potentially restrict the employees' ability to act as a group, or to prepare for group action, in matters related to the terms and conditions of their employment. This is commonly referred to as "protected concerted activity," and applies whether or not an employee belongs to a union. The Board's position is that use of social media to discuss terms and conditions of employment may be protected concerted activity. Because some social media policies can be interpreted as "chilling" employees' rights to, for example, complain about a mean boss on Facebook, the NLRB has claimed this issue as its own.

*Section 7 of the National Labor Relations Act provides as follows: "Employees shall have 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, and shall also have the right to refrain from any and all such activities . . .."

What about the courts? What do they say?

Court decisions directly discussing the lawfulness and breadth of social media policies are rare. After all, Facebook, Twitter and Myspace are relatively new phenomena, and the court system is slow. A court must wait to have an actual "controversy" over a social media policy before it can rule. Plaintiffs' lawyers are generally not interested in pursuing cases where there is no chance of a monetary recovery (such as where an employer has an unlawful policy but has never used it to terminate an employee). Eventually, an employee will be fired for allegedly misusing social media and will assert a wrongful termination claim, and we will get more guidance. In the meantime, the handful of court decisions that currently exist suggest the following principles:

  • You can tell employees that they have no expectation of privacy on company equipment or accounts. Courts across the country – even up to the Supreme Court – have found that when an employer states that it reserves the right to inspect or monitor all employees' use of the Internet and e-mail messages, the employee is on notice and has no legitimate expectation of privacy. Thus, an employee's surfing of Facebook on a company computer while on the clock is probably fair game.

  • You can discipline an employee for violating your Internet or social media policy. Though the NLRB seems to discourage any disciplinary action by employers on the basis of a social media policy, state courts in Pennsylvania and Minnesota, and a federal court in Texas, have found that an employee's violation of Internet policies – typically for actions like sending or storing sexually graphic e-mails – was an appropriate ground for termination. This suggests it's fair to treat online violations of your policies the same way that you treat offline violations.

  • Social media is admissible evidence of sexual harassment or discrimination. By this point every employer knows that an employee's Facebook account is discoverable in litigation. What you may not have considered is that if a manager posted a harassing remark on a subordinate's blog and the subordinate made you aware of it, some jurisdictions may hold you responsible for it on the theory that it is contributing to a hostile work environment. As an added bonus, the Internet is constantly archived and so your manager's remark will almost certainly come back to haunt you in litigation.

NLRB guidance

The May 30 report is the NLRB's third on the subject of social media, but the first that focuses exclusively on social media policies. (The first and second reports also address terminations of employees for alleged misuse of social media.) Whether or not you find the NLRB's reports to be helpful, it is indisputable that the agency is filling a void by providing some legal guidance to employers with social media policies. Thus, although the NLRB's reports do not have the precedential weight of a court decision, several issues highlighted by the NLRB deserve consideration.

  • The NLRB says a "Section 7 disclaimer" does not cure an overly broad social media policy. We say it's still a good idea to have one. When the NLRB's first report came out, experts nationwide recommended including a disclaimer in social media policies stating something like the following: "Nothing contained in this policy shall be interpreted or applied in a way that interferes with the legal rights of employees to engage in Section 7 activities." Many employers, thinking that this disclaimer would protect it from the NLRB's wrath, added it to their social media policies. The NLRB's reports make clear that this type of disclaimer does not rescue an otherwise unlawful policy. That having been said, a Section 7 disclaimer probably isn't going to hurt, either. The disclaimer is still helpful to show your intent and make clear to your employees they may always discuss the terms and conditions of their employment. This is particularly true because the courts have not yet weighed in on this issue.

  • Social media policies should give clear guidance and specific examples of acceptable and prohibited conduct. If you ask that employees maintain the confidentiality of your trade secrets, specify what is meant by "trade secrets." If you ask that employees respect financial disclosure laws, briefly explain that you mean (for example) actions that would violate your Insider Trading Policy or posts that provide "tips." Ironically, although the NLRB specifically condemns policies that are "ambiguous" and "contain no limiting language or context," the Walmart policy attached to the third report contains fewer examples than some of the "unlawful" policies. However, providing context is a concrete way to communicate prohibited conduct to your employees without impairing their rights.

  • A social media policy cannot prohibit the posting or publication of complaints or criticism about the company. Although you can suggest that using your internal dispute resolution system may be a more constructive way for an employee to make a complaint, you can't prohibit him from complaining about the terms and conditions of his employment through the use of social media. Additionally, although you may say that an employee cannot speak to the media on behalf of the company, you cannot prevent her from speaking with the media on behalf of herself and her co-workers.

  • Prohibiting illegal conduct online is acceptable. According to the approved Walmart policy, you can prohibit "discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct." The Walmart policy goes on to mention that such behavior may result in disciplinary action. The Board reports consistently approve provisions like these in social media policies. Thus, you may and should include non-discrimination and harassment language in your social media policy.

  • You can prohibit the disclosure of confidential information - maybe. The NLRB has taken inconsistent positions on employers' attempts to protect confidential and proprietary information in social media policies. For example, the third NLRB report says "don't share confidential information" is unlawful, but "don't post secret, confidential or attorney-client privileged information" is lawful. One possible interpretation is that a prohibition on disclosing specific types of confidential or protected information is better than a blanket prohibition, because your average employee may not understand what constitutes "confidential" information. For now, the safest course is to use the language in the approved policy until we receive clearer guidance on the matter.

If you find the NLRB guidance more confusing than helpful, don't despair. The Walmart policy attached at the end of the third report has already passed muster, so it is a good place to start. Even if you decide to go your own way with your social media policy, and even if that policy is someday found to violate Section 7, your liability will be limited as long as you didn't terminate an employee: the remedy is essentially to change the policy and post a notice saying that you won't violate the law again. (On the other hand, if you terminate an employee based on an unlawful social media policy, your liability will include back pay and benefits, and you may be required to reinstate the employee.)

Despite the somewhat confusing "guidance" that currently exists, it is still worthwhile for an employer to have a social media policy. Eventually some cases will make their way into the court system, and we can hope that the courts will take a more realistic view of employers' legitimate needs than the NLRB has done.

If you have any questions, please contact the Constangy attorney of your choice.

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