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Drafting Social Media Policies to Minimize Legal Risk of an NLRB Complaint

Employers struggle in social media to protect their confidential information, their reputations, and their intellectual property. The National Labor Relations Board (NLRB), on the other hand, is concerned with protecting the statutory rights of employees.

In August, 2011, the NLRB released a report on its social media investigations that ushered in a new age of corporate social media policies. Its findings do not just apply to unionized employers. The NLRB governs certain employee activities even in the absence of a union.

NLRB Reports on Social Media Investigations

In its report, the NLRB criticized social media policies that prohibit disrespectful language or negative comments, that forbid use of the employer’s intellectual property, or that protect employer’s confidentiality. Yet, these are mainstays of any employee handbook, so what can an employer do?

First, stay in touch with NLRB developments. Case law is emerging rapidly. Second, here are some current tips for employers who are drafting their social media policies for the first time or reviewing their existing policies:

State the Policy’s Intent

The NLRB upheld a grocery chain’s policy that prohibited various employee activity in social media, but that clearly stated its purpose was to ensure clear and consistent communications with the media. Because the policy had narrow goals, the NLRB said this media policy could not be reasonably interpreted to restrict protected employee activity.

The lesson here is to include a preamble stating what the policy hopes to accomplish for the employer. This introduction should also clarify that certain employee activities remain unrestricted and that the employer does not seek to chill the speech of employees discussing and seeking to improve their workplace pursuant to Section 7 of the NLRA.

– Include Examples

"NLRB logo"I have consistently advised that social media policies include examples of the kinds of behavior that are disallowed. Using examples to flesh out guidelines becomes even more important in light of recent NLRB activity. Specific case studies can help strengthen the employer’s defenses against a negative finding by the NLRB.

– Be Careful with Oral Policies

When I speak at conferences, many employers tell me that they are concerned about putting their social media policies in writing. They feel this communication form is evolving too quickly, and by putting guidelines or policies in writing, they run the risk of falling behind. Others feel challenged to create a set of guidelines that works, so they instead rely on oral discussions with employees.

I urge employers not to put their heads in the sand in this manner. Just as it became clear that a written sexual harassment policy was an important step in protecting an employer’s assets, so too, a written social media policy is crucial. This is particularly true given the fact patterns that show up in the NLRB’s summer report. The absence of a clearly written policy or set of guidelines makes it harder to defend against charges of an NLRA violation.

– Train Your Supervisors

Your trainings should teach supervisors to spot “protected, concerted activity” that relates to the terms and conditions of employment. In short, the supervisors should see online discussions among employees or with supervisors as red flags requiring legal vetting before firing any employee. Note that discussions can be nonverbal; “liking” a comment constitutes a discussion.

In addition, if an employee acts alone on Facebook or some other social media, but his goal is to organize or garner support for the benefit of all employees, his activity may be protected. This is particularly true if he has previously raised the issue with management. It is crucial to delve into the facts of every situation before making a firing decision.

– Clarify Employee Rights

Corporate social media policies should emphasize to employees, both orally and in writing, that employees are still free to exercise their Section 7 NLRA protected rights. Indeed, starting January 31, 2012, the NLRB will require employers to use a poster that clarifies certain rights. (You can read more about the poster requirement here).

Employers should be making plans now to post the requisite notice and to educate employees about what it means.

 

Kyle-Beth HilferThis post is adapted from a post that first appeared on Kyle-Beth Hilfer’s website. © Kyle-Beth Hilfer, P.C. 2011. Kyle-Beth Hilfer, Esq. specializes in advertising, marketing, promotions, intellectual property and new media law. She is also Of Counsel to Collen IP, a full service intellectual property law firm. For more information about her law practice and more blog posts, please visit Kyle-Beth Hilfer, P.C. Twitter: @kbhilferlaw.

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Comments

  1. Hi Jeannette. That is realy good advice. The thing about the law is that ignorance really is no defence. Not at least one that will hold up in court if you are sued.
    Thanks
    Mike

  2. In the highly litiginous world that we live in, it only makes sense to put every last policy in writing. I am rather shocked to hear that some think that oral instruction in such a vague area like social media would suffice. The points in the article are good old fashioned common sense in a not so old fashioned world.

  3. Mike Thanks for reading my post. One big mistake employers make is to think that NLRB does not apply to them if not unionized. When employers understand that concept, they open themselves up to taking steps to avoid legal issues with NLRB down the road. Kyle-Beth Hilfer

  4. Keyuri, thanks for reading. Keep in mind that when writing a policy, it needs to be done artfully and with flexibility so that employees continue to feel empowered. I am not suggesting being vague, but drafting in a way that keeps employees motivated and also allows the employers to keep up with new developments in social media and technology. Kyle-Beth Hilfer

  5. This is such a timely post Jeannette.I’m glad to hear that the NLRB is weighing in on this. It’s going to be interesting to see how this develops. I recently was talking to a friend who is a public school teacher and she informed me that the superintendent of our school system has made the recommendation that teachers do not participate on Facebook at all. Should he make it a formal policy rather than a personal recommendation, I fear that our town may soon be in line for another law suit. I certainly hope that some guidance comes from this.

  6. Sherryl, glad you appreciate the importance of my post. Keep in mind that the NLRB’s actions may only embolden individual employees who sense that the agency is on their side. But employees need to remember that the NLRB is only protecting concerted activity to organize. It does not protect against rogue individuals who act without thinking. Teachers have been hit hard with Facebook problems because of the delicacy of teacher/student interactions. One thing that people seem to forget is to check their privacy settings constantly on Facebook, and of course, realize that nothing is truly private. People amass too many friends and leaks are commonplace. Things may change a bit for privacy settings with the potential settlement that Facebook may enter into with the FTC. This was reported last week by the Wall Street Journal. You can read my preliminary analysis of this possible settlement at bit.ly/vUjKX9.

  7. Dennis, from an employer’s perspective, it is not fully common sense. Concepts like employees have to be mindful of their language or abide by all intellectual property protection standards are under threat. See another blog post I wrote entitled, “The Age of Corporate Social Media Policies 2.0 (aka What the NLRB Did This Summer) for another perspective on your point: bit.ly/onIlaj

    Thanks for reading.

  8. Keith, it is worth noting that the NLRB put out a new report at end of January, 2012 which further elucidates its thinking. The issue is not just to empower employees but also to find ways to protect employers and brands. Sometimes these goals can be at cross purposes. We will, no doubt,see some new legal precedents as interests collide. Thanks for reading my post and commenting.