Melanie Siemens and Stacy Miller | June 2013
The water cooler’s days are numbered. Nowadays, more and more employees are turning to social media sites like Facebook and Twitter to communicate – and complain – about their jobs. As a result, it has become more common to see employees disciplined for negative posts, blogs or tweets about their employers. If an employee badmouths the boss online, they can be terminated, right? Not so fast.
While employees should think twice before making work-related posts on social media sites, employers should think, too, before taking disciplinary action — they may run afoul of the National Labor Relations Act (NLRA), a federal law that applies to both union and non-union workforces. The NLRA protects employees’ right to engage in “protected concerted activity,” including the right to discuss wages, hours and other terms and conditions of employment.
But that doesn’t mean employers have to let their employees run amok online. A well-drafted social media policy is still the best way for an employer to protect its brand, its confidential information, and its intellectual property from employees’ online activity. And if you think making a blanket statement along the lines of “employees cannot speak badly of the company or their working conditions” will cover it, think again.
Here are some tips on developing a solid social media policy for your workplace:
1. Avoid Broad or Ambiguous Terms. It is not easy to craft language that perfectly explains what social media activities the employer considers unacceptable. If the policy is too broad, the employer runs the risk that it may appear to restrict employees’ NLRA rights. Avoid broad or ambiguous terms like “inappropriate,” “disparaging,” “disrespectful,” “discourteous,” and “offensive.”
2. Define “Confidential Information.” If the policy instructs employees not to divulge the employer’s “confidential information,” the employer should define that term and include specific examples (e.g., customer lists, marketing strategies, pricing policies) to minimize the risk that the policy could be read to restrict employees’ NLRA rights.
3. Give Examples. The use of examples may help avoid unintended overbreadth by showing employees the types of social media activities that the employer considers unacceptable. A policy that contains clarifying examples is more likely to survive scrutiny by the NLRB because it provides “context” to employees.
4. Savings Clauses May Not Save Your Policy. Many employers include a “savings clause” which clarifies that nothing in the policy is intended to interfere with, restrain, or coerce any employee’s lawful exercise of NLRA rights. While a savings clause may be helpful, it is unlikely by itself to save a policy that is too broad.
5. Update Based on NLRB Guidance. Many employers are revising their social media policies based on recent NLRB decisions and guidance. For example, the Office of the General Counsel issued a memorandum on May 30, 2012, dealing specifically with the issue of employer social media policies, and providing an example of a full policy which it deemed lawful.
6. Consider Other Workplace Policies. An employee’s social media activities can violate other corporate policies, such as discrimination and harassment policies. Drafting or revising a social media policy is an excellent opportunity to revisit and update other policies. Employers should note that the NLRA applies with equal force to a broad spectrum of workplace policies, such as those governing confidentiality, communications and technology.