In its third report of 2012, on May 30, 2012, the National Labor Relation’s Board (“NLRB”) further narrowed the scope of what would be construed as an acceptable employee social media policy. If you are an employer and want to restrict your employee’s social media use, you will want to read the Report (found here: NLRB May 30Report –click 'Operations Management Memo'). This latest report clarifies how various policies can be found to limit an employee’s Section 7 rights (read the National Labor Relations Act here) and are therefore unlawful.
The basic rule derived from the various NLRB reports is that an employer will be liable for social medial policies and rules that “would reasonably tend to chill employees in the exercise of their Section 7 rights.” However, if your social media policy provides rules “that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not be reasonably construed to cover protected activity, [the rule is] not unlawful.”
Essentially, three main points were made in the May 30 report:
1. Do not be over-broad in your policies. Be specific. If you do not want employees sharing personal information of other employees, be sure that you are not limiting the employee’s right to discuss labor conditions, salaries and wages, etc.
2. Give clear examples. Tell your employees what type of conduct is not allowed (i.e. discriminatory, harassing, obscene, malicious, threatening, disparaging, etc.). If you do not want confidential information to be disclosed to the public, tell your employees specifically what type of confidential information is included. Remember, it cannot include those items that are covered by the Act.
3. General disclaimer or “savings clause” does not cure the over-broad portions of a social media policy. In other words, if your policy is full of over-broad policies and you fail to give limiting examples and clarifications, your statement that the policy will be administered in compliance with all applicable laws and regulations, will not overcome the problems.
The Report gives several examples of poorly written policies and why they were found unlawful. However, it also gives employers the opportunity to view a policy that was found to be compliant with the act. Wal-Mart’s policies were found to be in compliance and are provided for readers starting at page 22 of the Report.
If you are writing or revising your employee manual’s social media policy, make sure that you reference the NLRB reports. And ask yourself if your policy leaves any question as to whether or not such lawful activities such as discussions on wages, working conditions, labor unions, etc. are somehow restricted.
This blog post is not meant to be an in depth examination of your duties and responsibilities as an employer in formulating a social media policy. Nor is it meant to cover all examples of how to avoid liability. You should discuss your social media policy with a qualified attorney or other qualified resource.