Your client is exasperated with what his employees post on social media sites and with having to re-hire Bob despite his negative Facebook posts about management and working conditions. Your client has had it. Despite your many offers to develop a social media policy for his company, your client spontaneously declared at an employee meeting that employees should stop posting anything about work to their social media platforms. Furthermore, if an employee feels they really have something they want to say about work, they should clear the posting with their manager first. This has caused a brouhaha at your client’s place of business, and (not surprisingly) resulted in just the opposite of your client’s intent — employees have posted all sorts of things to social media about work since the staff meeting. Now what?
The previous three articles in this series addressed employee social media activity, employer responses, and how employers might violate the NLRA by taking action against employees for their social media use in discussing workplace issues. So, what can a prudent employer do to balance the rights of his employees with that of his business? As your client has demonstrated, an outright ban on social media use and clearing posts with management is not the right way to go about it.
Many employers implement work rules or social media policies designed to manage employee social media use and protect the company from legal liability arising out of improper or illegal social media use. A work rule or social media policy provides specific guidelines designed to protect the company’s reputation, business relationships, trade secrets, and intellectual property, as well as to minimize liability associated with employees that post harassing, confidential, and/or other inappropriate material concerning the company or the employees. Effective policies provide employers with peace of mind that it officially communicates punishable or terminable offenses when employees violate social media policies, while employees will have a clear understanding of what they can and cannot do online.
Unfortunately, many employers’ social media work rules and policies have come under the scrutiny of the NLRB, and violate the NLRA causing the NLRB to strike down work rules and policies that it believes pose a threat to employees’ right to engage in Section 7 protected activities.
So, how do you know if your company’s work rule or social media policy violates employees’ Section 7 rights? An employer’s work rule violates the NLRA if that rule would reasonably tend to chill employees in the exercise of their Section 7 rights. The NLRB uses a two-step inquiry to determine if a work rule would have such an effect. First, the rule is unlawful if it explicitly restricts Section 7 activities. If the rule does not explicitly restrict protected activities, then it is unlawful upon a showing that: 1) employees could reasonably construe the language to prohibit Section 7 activity; 2) the rule was promulgated in response to union activity, or 3) the rule has been applied to restrict the exercise of Section 7 rights.
The NLRB found certain categories of social media work rules or policies in violation of the NLRA:
- Lack of specificity, definitions, or specific examples of prohibited acts
- Rule prohibiting communication of “confidential information” on social media sites.
- Rule prohibiting posting of offensive, demeaning, abusive, or inappropriate remarks.
- Failure to exempt protected Section 7 activities
- Rule forbidding posting of statements that are slanderous or detrimental to the company without exempting Section 7 activities.
- Prohibiting or potentially chilling employees’ right to organize
- Rule encouraging employees to report any “unusual or inappropriate internal social media activity.”
- Rules prohibiting use of social media on company time
- Prohibiting employee discussions of terms and conditions of employment
- Rule cautioning employees to “think carefully about ‘friending’ co-workers…on external social media sites.”
- Prohibiting criticisms of employers and/or management
- Rule prohibiting “negative [online] conversations” about managers.
- Prior approval of text by management or the law department
- Rule prohibiting use/posting of the company trademarks without prior approval of the law department.
- Employees prohibited from identifying themselves as an employee of the company on social media platforms without seeking prior approval of the company.
Your client’s spontaneous social media policy stated during a staff meeting violated the NLRA, and now, again, he’s asking you for assistance in fixing his blunder. Does your company have a social media policy or social media work rules? If so, are any of the categories noted above contained in it? Maybe it’s time to review those policies in light of the NLRB’s position on social media work rules and policies. Remember, the list above is not all-inclusive of policy areas addressed by the NLRB. You should always seek out counsel familiar with the current law in your jurisdiction to review your social media work rules or policy.