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New Guidelines on Social Media Policies

5/11/12

By: Joyce Mocek
Last week, the Acting General Counsel of the National Labor Relations Board (NLRB) issed a 24 page report containing specific guidelines for employers on their policies concerning social media use.  This is the third report that the NLRB has issued on social media policies, and it helped clarify what the NLRB considers to be lawful or unlawful provisions in employer policies on social media.
The  Board examined seven cases of company policies on social media where employees had claimed that their rights were being violated by the policies.  In six of these cases, the Board found that some of the employer’s policies violated the National Labor Relations Act (NLRA).  The one social media policy that was found to be lawful was attached to the report.
Provisions were found to be unlawful when they interfered with the rights of employees under the NLRA, such as the right to discuss wages and working conditions with co-workers, if they “would reasonably tend to chill employees in the exercise of their Section 7 rights.”
Policies were found to be unlawful or over-broad where they :

•  Encouraged  employees to “consider using available internal resources, rather than social media or other online forums, to resolve concerns,”
• Prohibited employees from participating in social media activities with the  employer’s resources and/or on company time,
• Instructed employees in a media policy to “think carefully about ‘friending’ co-workers…on external social media because “it would discourage communications among co-workers.”

The Report also concluded that employer disclaimers or savings language to cure a policy that is otherwise over-broad would not save the policy.
Policies that were found to be lawful:

• Prohibited employees from posting “information directly or indirectly related to the safety performance of employer systems or company vehicles,”
• Prohibited employees from posting content that is protected by attorney client privilege,
• Instructed employees to “show proper respect for the laws governing copyright, fair use of copyright material owned by others, trademarks and other intellectual property, including employer copyrights, trademarks and brands.”

The NLRB’s recent guidance on social media provides helpful  parameters for employers trying to develop appropriate social media policies to withstand a challenge to Section 7 of the NLRA.  However, the new guidelines do not cover all issues an employer may wish to address in social media policies.  With the expondential increase in numbers of users and extent of use of social media, social media policies will continue to be on the radar for the NLRB.  There is little guidance in the courts on appropriate social media policies.  Employers will be wise to review their current social media policies to ensure that they comply with guidelines that have been considered lawful by the NLRB  as this area of the law continues to evolve.