Let’s face it: Drafting a lawful social media policy is a challenge. New rulings can quickly make relevant policies outdated. In fact, if your company first drafted a social media policy a few years (or even several months) back, it would be wise to review that policy in light of recent National Labor Relations Board (NLRB) decisions. Over the last two years, the NLRB has actively investigated company social media policies and has routinely shot down specific work rules — and sometimes entire social media policies — because they violate their employees’ right to engage in protected and concerted activities.
Social media policies and work rules need to balance your company’s goals while still permitting employee protected activities under the NLRA. The primary reasons why social media policies and work rules are struck down are that they are vague, overbroad, and/or could potentially interfere with employees’ rights to engage in protected activities.
NLRB guidance on lawful social media policies and work rules is less than clear (and arguably contradictory at times), but, what we do know is that to comply with the National Labor Relations Act (NLRA), employers must:
- Clearly and specifically communicate organization, legal, and regulatory rules to employees, executives, independent contractors and others working on behalf of the company;
- Provide employees with a clear understanding of what constitutes appropriate, acceptable, and lawful business behavior; and
- Help employers demonstrate that the company is committed to operating a business environment in a straight-forward and NLRA-compliant manner.
With those guidelines in mind, here are some best practices for drafting NLRA compliant social media policies:
- Set forth the goals of the policy. State the goals the company intends to achieve. Advise employees of their right to use social media while providing a clear understanding of prohibited social media activity.
- Use specific and clear language. Do not use general, broad, or vague prohibitions against certain conduct that could be interpreted as intent to chill protected activities.
- Define key concepts and terms. Provide definitions of key terms either within the text of the policy or in a glossary section. Consider defining such terms as “confidential data,” “trade secrets,” and “customer information.”
- Use plain English. Skip the confusing legalese, sophisticated technical terms, acronyms, and abbreviations. If you must use such terms, add the terms or acronyms to the glossary or define them in the body of the policy.
- Provide specific examples of prohibited conduct. The context of a social media policy or work rule is key to determining its lawfulness. By providing a list of specific examples of unacceptable behavior, statements, and activities, an employee can more easily understand the type of activity prohibited under the policy.
- Do not restrict more than necessary. Overbroad policies not only decrease employee morale, but could expose a company to liability for chilling its employees’ protected rights. For example, a policy prohibiting the use of social media on company property would most likely violate an employee’s right to discuss terms and conditions of employment with other employees on non-work time and in non-work areas.
- Do not prohibit employees from identifying themselves with the company. Employees have a protected right to use the company name and logo while engaged in protected concerted activity.
- Advise employees of the employer’s right to monitor them. If you monitor your employees’ online activity at work, the social media policy should advise them accordingly.
- Tailor the policy to your company. There is no “one size fits all” social media policy. You should tailor your policy to the specific needs of your company. For example, if your company has trade secrets, or it is subject to HIPAA laws and regulations, then ensure that your policy prohibits employees from posting that type of sensitive information on any social media platform.
- Do not rely on savings clauses. The NLRB routinely determines that a savings clause, which states that no rule contained within the policy is intended to prohibit protected activity, is insufficient to cure ambiguities and overbroad work rules and policies. A better practice is to use limiting language within specific rules to make clear that the particular rule is not intended to limit protected rights.
Following these best practices will ensure that you are up to the challenge of drafting an effective social media policy. Just be sure to familiarize yourself with the laws in your jurisdiction, review any changes or updates in the law, and consult legal counsel who practices in this area to ensure compliance.