As we predicted last month, the National Labor Relations Board (“NLRB”) is continuing its focus on social media policies in the wake of recent obstacles to the agency’s attempts to expand its role among union-free employers. Last week, the NLRB issued its third memorandum in ten months on workplace social media policies. Each memorandum has summarized the NLRB’s most recent decisions regarding social media policies. These memoranda do not provide clear guidance on NLRB policy, but only murky guidance on what we might expect to see next from the NLRB. But this time there is a saving grace; the NLRB quoted one entire social media policy that it approved!
Typically, workplace social media policies are designed to protect such things as trade secrets and other intellectual property, prohibit unlawful harassment or cyberbullying, and control who can speak on behalf of the company. The NLRB’s primary concern is that social media policies could “chill” employees’ willingness to band together to discuss or improve working conditions, a right bestowed by the National Labor Relations Act and guarded by the NLRB. However, the NLRB’s decisions have gone far beyond this. Worse yet, until now, there was no bright line offered to guide employers. Rather, the agency has dissected each word of multiple employers’ policies to ferret out any possibility that an employee could perceive the social media policy interferes with protected activity.
In six of the cases analyzed in the most recent memorandum the social media policy was determined to be unlawful, at least in part. However, the seventh case approved the employer’s policy. Although we tallied 25 distinct “don’ts” among the clauses the NLRB considered, this approved policy may make up for all the past (and continuing) inconsistencies. To take full advantage of this development, we urge companies to adopt the quoted policy with as few changes as possible. The more changes you want to make, the more you should seek legal counsel. To understand the reason for our caution, consider the following two clauses, one of which is lawful and the other of which is not:
- Lawful: Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet.
- Unlawful: You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet. [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.
In the latter case, the NLRB said an employer may suggest employees try to resolve concerns through internal procedures, but this policy “would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums” by “telling employees that they should use internal resources rather than airing their grievances online.” It is difficult to see the difference between the two policies, in that neither prohibits airing grievances online and both encourage internal resolution as the more effective option.
This kind of reasoning is why employers should hew closely to the language approved by the NLRB and should consult counsel if they wish to alter the language at all. Furthermore, employers in regulated industries or which deal with highly sensitive information, such as medical or financial information, should take extra caution to ensure their policies meet the company’s (and their regulators’) unique needs while conforming to the NLRB’s guidelines.
Overall, the latest social media memorandum illustrates the NLRB has not slowed down its efforts to regulate employers’ ability to control the use of social media by employees or the NLRB’s interest in union-free companies. While the approved policy will not meet the needs of all employers, it is a good starting place for many businesses.
Equally important as proper drafting of a social media policy is proper implementation. Employers should consult counsel before disciplining or terminating an employee based on his or her social media activity, even pursuant to a well drafted policy.
Brody and Associates regularly advises its clients on all labor management issues and provides various training programs. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
