By: Melvin W. Haas, III
Constangy, Brooks, and Smith, LLP
Many employers have heard a lot of talk about social media policies. As one of those employers, you may be wondering, “Why do I need a social media policy? I mean it is just tweets and status updates, right?”
The National Labor Relations Board (NLRB) has been focusing a lot of time and energy on social media. The focus of the National Labor Relations Board is union activity, including union elections, and investigating unfair labor practices. The NLRB has taken the position that social media policies inhibit “protected concerted activity.” In fact, Mark Pearce, Chairman of the NLRB, has said that “the social media cases have been very helpful in terms of raising the public’s awareness of the NLRB.” Raising awareness has been and continues to be an important goal for the Board.
Section 7 of the National Labor Relations Act provides as follows:
Essentially, this means that employees, whether or not they belong to a union, are allowed to discuss the terms and conditions of their employment, and that such discussion is protected concerted activity. Some social media policies are considered to “chill” this right to discuss these terms and conditions of employment- like an employee complaining about their boss!
The NLRB has struck down several employer social media policies as “overly broad” and violation of employees’ Section 7 rights. The NLRB has also issued guidance regarding the opinions on social media policies. For example, the NLRB has said that a disclaimer is not a “cure” for a bad social media policy. One of the most troubling areas is the disclosure of confidential information. The NLRB has taken inconsistent (and confusing) positions on this issue, approving some language while finding other language unlawful. Essentially, each employer’s social media policy is up for grabs.
- Avoid Vague Policies: Civility clauses have been heavily scrutinized. The cases in this area are ever evolving and dynamic. For example, while employee posts may be disloyal, they cannot be grossly disloyal. Likewise, case law has also said that while employees can be disrespectful, their social media posts cannot be outrageous or shameful. These finely drawn distinctions can be difficult to navigate. However, the NLRB has made it clear that while discriminatory, harassing, or threatening language can be prohibited, vague language about being disrespectful could inhibit an employee’s right to talk about the terms and conditions of their employment.
- Be Specific: The NLRB has made it clear that specific examples are helpful so that employees understand what it is they can and cannot say. However, make sure your examples are in keeping with the current law and guidance.
- Savings Clause: While the Board has made it clear that disclaimer language cannot be a cure on its own, administrative law judges have taken them into account when examining social media policies. Accordingly, having one is likely a good idea.
In this ever changing social media landscape, employers are constantly required to change and update their policies. If you think you may need help with your social media policy, contact an experienced labor lawyer.