Drafting Social Media Policies That Comply with the NLRA

July 17, 2012

Social media is here to stay. Accessing sites such as Facebook and Twitter is now as simple as a touch of a finger, particularly since smartphones have overtaken the workplace. Employers have responded by drafting new policies or revising existing ones to address the topic and related issues. The policies regulate matters such as social media use, confidentiality, privacy, protection of employer information, intellectual property, and contact with the government and media. However, you should be wary of the language in those policies.

Drafting policy language that is overly broad and without clarification may violate the National Labor Relations Act (NLRA). The National Labor Relations Board (NLRB) recently issued Memorandum OM 12-59 to address this problem. The memo analyzed seven recent social media cases and provided guidance on interpreting policies to ensure compliance with the requirements of the NLRA. This article provides an overview of that memo and discusses how an employer can avoid drafting unlawful language.

Concerns for employers 
Employers should be concerned about proper drafting of social media policies because improper language can violate Section 7 of the NLRA. Section 7 protects an employee’s right to organize, join, assist, and bargain with a union, or refrain from doing so. Thus, you cannot draft policy language that “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 has a chilling effect. First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. Second, a rule that doesn’t explicitly restrict Section 7 protected activities violates the NLRA only if:

(1) Employees would reasonably construe the language to prohibit Section 7 activity;

(2) The rule was created in response to union activity; or

(3) The rule is applied to restrict the exercise of Section 7 rights.

The NLRB construes ambiguities against the drafter. Any ambiguous language that could be read to affect Section 7 rights will be interpreted as unlawful.

‘Dislike’ the unlawful language
The memo emphasizes the importance of avoiding ambiguity in social media policies. It reviews seven recent social media cases and summarizes examples of unlawful policy language. The following are three examples of unlawful social media policies:

(1) Don’t release confidential guest, team member, or company information. This policy is unlawful because an employee could reasonably interpret it to prohibit workers from discussing and disclosing information about their own conditions of employment, which is a Section 7 protected right.

(2) Don’t reveal nonpublic company information, including personal information about another employee’s performance, compensation, or status, on any public site. This rule is unlawful because the explanation clearly relates to topics protected under Section 7.

(3) Report any unusual or inappropriate internal social media activity. An employer violates the NLRA by encouraging employees to report to management the union activities of other employees. This policy is unlawful because it has the potential to discourage employees from engaging in protected activity.

Each of those policies is overly broad and can be reasonably interpreted to violate Section 7. You can avoid poor policies by using unambiguous language and providing clear examples of prohibited conduct.

‘Like’ the good language
Rules that clarify and restrict the scope of social media use are not unlawful. You can draft proper policies by including examples of clearly illegal or unprotected conduct so that an employee couldn’t reasonably construe them to affect protected activities. The following are three examples of lawful social media policies:

(1) Do not post inappropriate comments. A policy addressing inappropriate postings is lawful if it includes examples of inappropriate postings—for example, “discriminatory remarks, harassment and threats of violence, and similar inappropriate or unlawful conduct.”

(2) Be respectful. This policy is lawful if it provides sufficient examples of plainly egregious conduct so that employees couldn’t reasonably construe the rule to prohibit Section 7 conduct. Examples include “intentionally harmful or offensive posts” and “posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion, or any other protected class.”

(3) Ensure confidential information remains confidential. Since employees have no protected right to disclose trade secrets, this policy is lawful if clear examples are included—e.g., “information regarding the development of systems, processes, products, know-how, technology, and the like.” In this case, the key is to ensure that employees understand that the policy doesn’t reach protected communications about working conditions.

Bottom line
When drafting social media policies, you must use unambiguous language. You can draft unambiguous language by including examples of clearly illegal or prohibited conduct. The NLRB reviews these policies by asking how an employee would reasonably interpret them. So when drafting social media rules, consider how your employees would interpret them. If there is the slightest chance that an employee could interpret a policy as “chilling” or restricting his rights under Section 7, then revising the policy or drafting a new one is a good idea.

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For more information about "Drafting Social Media Policies That Comply with the NLRA," contact Saul C. Glazer at sglazer@axley.com or 608.260.2473.