This second article of a three-part series on social media provides some important tips for employers to keep in mind when undertaking the tricky task of writing a social media policy. Read the first article here.
Policing employees’ social media activity is a complex issue. While the increasing number of social media websites and portals certainly makes it harder for employers to oversee their employees’ workplace social media usage, the legal standards applied to the review and protection of employees’ workplace social media activity provide the real quandary for employers. As a result, drafting a social media policy that conforms to the governing law in this area requires employers to first carefully police the language and restrictions within their social media policies with an eye towards respecting their employees’ rights in this area.
1. Understand your employees’ rights
To properly draft social media policies, employers must first recognize the considerable protection their employees have under the National Labor Relations Act (NLRA) to use social media to discuss workplace issues. Section 7 of the NLRA protects employees who engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (NLRB) has held that an employee’s conduct is concerted when he or she acts with the authority of other employees, seeks to initiate, induce or prepare a group of employees for group action or when the employee brings group complaints to the attention of management. An employee’s social media activity will only be protected, however, if it concerns wages, hours, benefits or other terms and conditions of employment.
Under this standard, Section 7 has been held to protect an employee’s right to:
- Criticize his or her employer, superiors, co-workers or the terms and conditions of employment
- Discuss non-public, sensitive or personal information related to terms and conditions of employment
To craft lawful social media policies, employees must first consider their employees’ Section 7 rights and heed the types of activity that has been protected under the NLRA.
2. Ensure that your policy is not overbroad or ambiguous
Under Section 8 of the NLRA, it is unlawful for an employer to interfere with, restrain or coerce employees in the exercise of their rights under Section 7. Recent developments indicate that employers should steer clear of drafting overbroad or ambiguous policies that could be construed as infringing on employees’ Section 7 rights. For instance, the NLRB’s 2012 report highlighted the following provisions contained within various companies’ social media policies as being overbroad and unlawful:
- A provision that instructed employees to be sure that their posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site.” This provision was held to be overbroad and unlawful because it could reasonably be interpreted to apply to discussions about, or criticisms of, the employer’s labor policies and its treatment of employees; both of which are protected under Section 7.
- A provision that instructed employees that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” This provision was held to be overbroad and unlawful because it proscribed a broad spectrum of communications that could include protected criticisms of the employer’s labor policies or treatment of employees, which are protected under Section 7.
- A provision that instructed employees to “think carefully about friending co-workers.” This provision was held to be overbroad and unlawful because it would discourage communications among co-workers, and thus necessarily interferes with Section 7 activity.
In view of this, employers should draft their social media policies with specificity. One approach would be to draft policies with specific examples of the types of behavior that violate the policy, and examine each provision to make certain it does not infringe on any activity that their employees are legally permitted to engage in under Section 7.
3. Do not rely on a disclaimer
As powerful a tool as the legal disclaimer can be, it will likely not overcome a social media policy that infringes on an employee’s Section 7 rights. Employers can therefore not expect to evade having an overbroad or ambiguous social media policy declared unlawful because they included a disclaimer within their policy stating that “nothing in the policy restricts employees’ rights under the NLRA.”
4. Focus on restricting employee behavior that is not protected under the NLRA
Despite these limitations, employers can still freely restrict their employees from using social media to discuss workplace issues that do not fall under the rubric of Section 7 protected activities. For example, employers can instruct their workers not to disclose trade secrets, not to post information that could contribute to an employee being harassed or bullied on the basis of his or her sex, race, disability or religion or not to post information that is maliciously false. When drafting social media policies, employers should focus on restricting these types of activities first.
As much as they may want to, employers will not be able to prevent their employees from using social media to discuss workplace issues. Section 7 of the NLRA gives employees the latitude to use social media to discuss workplace issues in front of an audience of millions. An effective social media policy can substantially limit the scope of workplace issues that employees can discuss online and enable employers to protect against the dissemination of confidential or proprietary business information. The key for employers is to ensure that they are able to protect their confidential information while simultaneously respecting their employees’ protected Section 7 rights.