Social Media Policies and the NLRB's Crack Down on General Language

In a 2009 interview, I suggested the following general guidelines for a company's social media policy:

An employee shall not:

1. discuss trade secrets or other proprietary information
2. post defamatory information
3. harass any individual on the web
4. write discriminatory content in violation of Title VII

There is a fifth category, but specific guidance must be given to employees if this language is included:

5.  discuss matters which negatively reflect the company.

Click here for Q&A with Perry Binder, J.D., on Employee Participation in Social Media and Blogging

However, the legal landscape has changed with the level of specificity that employers must use in order to draft defensible policies.  Section 7 of the National Labor Relations Act gives employees some latitude in their social media usage if their posts relate to "protected concerted activity."  In English, that means that if a Tweet or Facebook post is an attempt to engage others in complaining about lousy work conditions or wages, then the National Labor Relations Board might step in on behalf of a fired employee - even in an "at will" state.  Specifically, employers cannot rely on blanket statements about inappropriate employee comments on social media (see above: discuss matters which negatively reflect the company), without guiding examples which do not infringe on concerted activity.

For example, in September 2012, an NLRB administrative law judge ruled that the following social media policy violated its employees’ right to discuss the terms and conditions of work online or elsewhere: Employees are prohibited from making disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or ... their products/services.  What You Can’t Say in an Employee Handbook, HR Executive Online (Oct. 16, 2012), http://www.hreonline.com/HRE/story.jsp?storyId=533351926.  

That same month, the NLRB held that the following email and technology policy could be reasonably interpreted as a violation of employees’ rights:  Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person's reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

Thus, if your company has not examined its social media policy in 2012, it is time for counsel and human resources to carefully reword the document's language, in an effort to harmonize it with recent cases.