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Status update: Social media policies still under scrutiny

The acting general counsel of the National Labor Relations Board (NLRB) seems to be updating its status as often as some social media specialists.

The board issued a second report on social media cases on January 24, 2012,  just six months after issuing its first report on the subject. Social media use is undeniably prolific. Accordingly, and based upon protecting business interests, employers have implemented policies that guide employees on the use of social media. Based on the prevalence of social media use and the emergence of social media employment policies, the NLRB has taken a keen interest in this topic.

In this recent report, the NLRB continues to refine its analysis of the two most common issues it has heard presented in social media cases: 1) whether the employer’s social media policy itself is overbroad and thus violates employees’ right to engage in concerted and protected activity under Section 7 of the National Labor Relations Act (NLRA); and 2) whether the employee action at issue is truly concerted and protected by the NLRA.

The NLRB remains highly critical of most broadly-worded social media policies seeking to regulate online comments that disparage employers, supervisors or co-workers, but recognizes that employee postings not clearly part of, or looking toward, group action are unprotected and the proper subject for discipline. Thus, the report delivers something of a good news/bad news message for employers.

First, the (somewhat) good news: Consistent with established case law, individual complaining by an employee is insufficient to invoke NLRA protection. For example, a Tweet of a purely individual gripe, made with no intention to induce co-workers into group action and not resulting from a group discussion of terms and conditions of employment, is not protected group or “concerted” activity. In the same vein, online expressions of personal anger or irritation with co-workers or an employer, made solely on the posting employee’s own behalf and not involving the sharing of common employee concerns, are not protected, concerted activity. Conversely, group discussions of workplace concerns generally will be protected.

And now, the bad news: the Board continues to view as impermissibly overbroad policies those that generally prohibit “disparaging” or “inappropriate” comments, “disrespectful” conduct or the disclosure of “sensitive” or “confidential” matters. The inclusion of a “disclaimer” or “savings clause,” which pledges that the employer will not enforce its policy in violation of law, is insufficient to rescue an otherwise overbroad rule. This leaves the door open for employees to complain about their own employer’s operations or customer service and be protected by the NLRA.

How should you consider this in drafting your social media policy? Only policies that provide specific examples of prohibited conduct, or other “contextual limitations” will be approved. For example, a policy that bans the use of social media postings that are vulgar, obscene, threatening or intimidating, or which violate other specific employer policies, will be lawful because the prohibitions are sufficiently detailed. A policy that requires compliance with securities regulations and other laws prohibiting the unlawful use or disclosure of confidential or proprietary information is lawful, because contextual limitations within the policy adequately define the prohibited conduct.

Social media under the NLRA remains an emerging area of the law and employers must carefully draft workplace policies that address employee participation in Facebook, Twitter and other social media platforms. Considering that the NLRA protects the employees’ rights to take action for “mutual aid and protection” in both union and non-union workplaces, the NLRB’s ongoing social media analysis will have a far-reaching impact on workplaces across the nation.

That said, there is still value in having a social media policy to define both management and employee expectations in regard to the use of social media as it relates to the workplace. Stay informed & know your #socialmedia #employer #rules!

Anne B. Wilde is an employment and ERISA employee benefits attorney.  She is the principal of The HR & Benefits Advisor, PLLC, which advises employers and plan sponsors.  Anne can be reached at anne@TheHRandBenefitsAdvisor.com or www.TheHRandBenefitsAdvisor.com.

About Anne Wilde