Nlrb Clarifies Guidance On Social Media Policies

Social media policies continue to receive scrutiny from the National Labor Relations Board (“NLRB”), which issued its third “Report on Social Media” on Wednesday, May 30, 2012. As in the previous two reports, the NLRB discusses several recent cases and sets forth its conclusions about the lawfulness of various employers’ social media policies under the National Labor Relations Act (“NLRA”). Once again, the NLRB found that employee postings on social media websites may be considered protected concerted activity under the NLRA. However, what is particularly important about this third report is the inclusion of a sample social media policy that the NLRB has concluded is entirely lawful.

The inclusion of a sample lawful policy provides additional guidance for employers on the appropriate language to include in their social media policies. In addition, attorneys in Call & Jensen’s Employment Law Group are also readily available to further discuss these issues and assist in the drafting or revision of your social media policy.

“Do’s and Don’ts” of Social Media Policies:

• Do: Prohibit employees from posting “discriminatory remarks,” “threats of violence,” comments that constitute harassment or bullying, posts meant to “intentionally harm someone’s reputation,” or posts that “could contribute to a hostile work environment on the basis of race, sex, disability, religion, or any other status protected by law or company policy.”
  • Don’t: Prohibit employees from making “disparaging” or “inappropriate” remarks. This terminology is too ambiguous and has been found to be facially overbroad and unlawful.
• Do: Include instructions that employees “never post any information or rumors that you know to be false about the employer, fellow associates, members, customers, suppliers, people working on behalf of the employer, or competitors.”
  • Don’t: Require employee posts to be “completely accurate and not misleading” because this could encompass posts that unintentionally contain inaccurate information.
• Do: Include a general statement that any online conduct that adversely impacts an employee’s job performance may result in disciplinary action up to and including termination.
• Do: Preclude employees from posting anything on the internet “on behalf of” or “in the name of” the employer without prior authorization. Employers can require their employees to expressly state that their postings are “my own and do not represent the employer’s positions or opinions.”
  • Don’t: Prohibit employees from identifying themselves as Company employees.
  • Don’t: Prohibit employees from using company logos or trademarks in social media postings as this may be construed as prohibiting non-commercial uses by employees such as discussing the terms and conditions of their employment.
  • Don’t: Instruct your employees that they may not comment on legal matters involving their employer.
• Do: Include a policy on confidential and trade secret information that states: “Maintain the confidentiality of employer’s trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports.”
  • Don’t: Fail to properly define the terms “trade secrets” or “confidential information,” as that may render the policy facially overbroad and unlawful.
  • Don’t: Prohibit employees from discussing employee compensation.
• Do: Urge employees to respect copyright and intellectual property laws.
  • Don’t: Require prior authorization before an employee reuses someone else’s content or image as it would interfere with employees’ protected right to take and post photos of, for example, employees working in unsafe conditions.
• Do: Suggest that employees try to work out concerns over working conditions through internal procedures before taking to the internet.
  • Don’t: Require internal resolution attempts or that employees “report any unusual or inappropriate internal social media activity.”
• Do: Include policies instructing employees to “respect financial disclosure laws,” and reminding employees that it is illegal to give a “tip” on inside information to others so that they may buy or sell stocks or securities.
  • Don’t: Broadly prohibit employees from posting information that could be deemed “material non-public information” or “confidential or proprietary” without further definition of those terms.
• Do: Prohibit employees from using social media “while on work time or on equipment the employer provides, unless it is work-related as authorized by your manager or consistent with the employer’s equipment policies.”

Finally, if you do need to revise your social media policy, consider distributing via email and including a return receipt on the message for employees to acknowledge that they have read and understood the communication.