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Dos and Don’ts for Employer Social Media Policies
By Christopher P. Calsyn Crowell & Moring LLP
Employers continue to live in a state of uncertainty, wondering if the National Labor Relations Board (NLRB or Board) will declare that their social media policies or practices violate the National Labor Relations Act (NLRA). Although the D.C. Circuit’s recent decision in Noel Canning v. NLRB throws into doubt the validity of some of the NLRB’s decisions regarding social media policies, Noel Canning should not have a long-term effect on the NLRB’s position on this issue. The NLRB’s decisions in these cases are rooted in long-standing Board precedent. Once the Board has a proper quorum, additional decisions in social media cases will likely follow that precedent. As such, employers should follow some simple “dos and don’ts” with respect to drafting, amending and administering their social media policies.
Initially, it is important to note that even though 93%of the American workforce is not unionized, Section 7 of the NLRA still protects those non-supervisory, non-unionized workers who use social media to engage in “concerted activities for the purpose of collective bargaining or other mutual aid and protection.” This creates a special risk for non-unionized employers who are unlikely to be aware of current Board precedent. They usually draft their social media policies using what most people would consider common sense and legitimate business interests in mind. The danger for these employers is that the NLRB often finds these policies violate the NLRA because they may chill the exercise of Section 7 rights by employees. Employers are therefore smart to follow the “dos and don’ts” below.
Employer “Dos” for Social Media Policies
● Ensure that any prohibitions on employee social media behavior are as narrowly drawn as possible. For example, if you prohibit employees from disclosing certain categories of company information (such as confidential, financial, or proprietary information), you should define each of those terms in the policy with specific examples of the types of documents and information that fall under each of these broader terms. These examples should identify clearly protectable interests like trade secrets, marketing plans, business strategies, client/customer lists, research and development activities, and pricing information.
● Include provisions that require employees who are posting about work-related issues or company products or services to include a disclaimer. That disclaimer should identify them as a company employee, and specify their views are their personal opinions and do not reflect those of the company.
● Require any employees using social media on behalf of the company to sign a separate written agreement specifying that the account(s), content and any list of friends, followers or contacts developed using the account(s) are the sole property of the company. Further, any such agreements should spell out the procedures for the employee to turn over control of the account(s) to the employer upon the employer’s request and/or the employee’s termination, and make clear that the employee is not to use the account(s) for any personal use.
● Enlist knowledgeable counsel to review the facts related to any proposed discipline based on an employee’s social media use to ensure that the discipline does not violate the NLRA.
● Retain knowledgeable counsel to analyze any proposed implementation or revision of your social media–related policies to ensure the proposals reflect the latest trends in the NLRB’s treatment of social media issues.
Employer “Don’ts” for Social Media Policies and Practices
● Do not bother including “savings clauses” which state that the policy or a provision of the policy is not intended to infringe on Section 7 rights. Although the NLRB’s decisions in Costco, 358 NLRB No. 106 (Sept. 7, 2012) and Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012) left open the possibility of a “savings clause” rescuing an otherwise invalid provision, the NLRB has not faced that question directly. When it does, the NLRB is likely to side with the Acting General Counsel for the NLRB, Lafe Solomon, who believes such clauses fail to offer any safe harbor. Thus, employers who rely on these clauses are doing so at their own peril.
● Do not include blanket prohibitions on defaming or otherwise damaging the reputation of co-workers, clients or the company. The NLRB’s Costco decision makes clear that such broadly worded restrictions will be considered violations of Section 7 rights.
● Do not prohibit employees from using the company’s logo or similar branding materials in their social media posts. The NLRB has long held such prohibitions violate Section 7 rights.
● Do not prohibit employees from posting information about their wages or hours worked. The NLRB is clear that these are terms and conditions of employment that employees are free to discuss under Section 7. They should not be among those specific items you list as “confidential information” that cannot be disclosed.
● Do not forbid employees from using social media to contact the traditional media (such as newspapers, television stations, etc.). The Board reiterated in DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54 (Jan. 25, 2013) that such prohibitions violate the NLRA. Employers can, however, require employees to clarify in any social media posts that they are not speaking on behalf of the company.
While the “dos and don’ts” above provide a solid foundation for drafting, amending and administering a social media policy, this is still an area of law that is in flux. For example, none of the Board’s decisions involving social media policies has reached the U.S. Courts of Appeal, where it is possible they may be overturned or amended significantly. Therefore, employers must keep abreast of developments in this area in the coming months and years.
Christopher P. Calsyn is a counsel in the Labor & Employment group of Crowell & Moring LLP in Washington, D.C. Chris regularly provides clients with litigation and counseling services in all facets of labor and employment law including federal and state whistleblower statutes, FLSA and state wage/hour statutes, anti-discrimination laws, and the Family Medical Leave Act. Chris also devotes a significant portion of his practice to assisting employers in protecting their trade secrets and litigating misappropriation of trade secrets claims. Chris is a graduate of the University of Illinois at Urbana-Champaign and the University of Virginia School of Law.
Disclaimer: The views and opinions expressed in this article are those of the individual sources referenced and do not reflect the views, opinions or policies of the organizations the sources represent.