Feb 292012

Thanks to services like Facebook, LinkedIn and Twitter, it’s possible for your employees to reveal harmful, embarrassing or confidential information to the entire world in the blink of an eye. To help mitigate this risk, many companies have adopted “Social Media Policies” to regulate what their employees can do in social media.  But, as a string of recent cases brought by the National Labor Relations Board demonstrate, employers need to be careful about what’s in their policies and how those policies are enforced.

At issue is a pre-Internet law, Section 7 of the National Labor Relations Act:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .

In the non-internet world, this allows employees to get together to discuss their working conditions without having to worry about being fired.  But, what happens when those get-togethers are on Facebook or an employee’s blog?

Last month, the Acting General Counsel of the National Labor Relations Board released a new memo describing fourteen cases that help to answer that question.  In a nutshell, the answer is that the rules don’t change simply because communications and get-togethers are occurring on the internet.  In particular, the decisions focus on whether employees would “reasonably interpret” a social media policy to prohibit activity that is protected under Section 7.

Unfortunately, the Board’s definition of “reasonably interpret” doesn’t really jibe with the “reasonable person” standard that governs how we normally expect people to behave.  Instead, the NLRB’s “reasonable person” seems to be easily confused and distracted.  As a result, social media policies have to be written with an eye toward readability and clarity for easily-confused laypeople.  Here are some examples from the memo of what this means:

  • While it’s a good idea to list specifically allowed activities, it’s not enough to just add a savings clause that says something like “this policy will not be interpreted or applied so as to interfere with employee rights to self-organize, form, join or assist labor organizations, to bargain collectively through representatives of their choosing or to engage in other concerted activities.”
  • Examples of permitted and not permitted conduct can help explain the policy
  • Poorly-defined words like “inappropriate” or “unprofessional” should be avoided, unless they can be made clear through use of examples.
  • Context is key — employees are less likely to be confused by limited policies intended to protect against securities law violations or breaching trade secrets, for example, than they are by broad general policies.

I recommend the memo to anybody planning to implement a social media policy, so you can see just how the NLRB thinks about social media. Fair warning, though: some of these cases just don’t jibe with each other — in one case, a policy that prohibited “defamatory” statements might lead employees to believe the policy covered protected activity, while another policy that prohibited “statements which are slanderous” was fine.   (For those not familiar, slander is just oral defamation. Social media posts, by nature, are nearly always written and so cannot be slanderous.)   It’s a bizarre world.