Barran Liebman: The Latest and Not-So-Greatest Updates Regarding Social Media Policies

Barran Liebman: The Latest and Not-So-Greatest Updates Regarding Social Media Policies

by Tamara Russell

Just when most employers thought it was safe to enforce their social media policies, a recent report from the National Labor Relations Board ("NLRB") demonstrates that this area of the law is far from settled. The report, an "Operations Management Memorandum" prepared by the NLRB's Acting General Counsel, was issued on January 25, 2012, and provides some guidance for employers as to what their social media policy should (and should not) state, including:

  • A policy that prohibits employees from making disparaging remarks when discussing the company or supervisors or depicting the company in any media without permission is overly broad.
  • The NLRB invalidated a policy that prohibited employees from posting pictures of themselves depicting the company in any way (including using a uniform or logo) since that could prohibit posting photos of the employee carrying a picket sign with the company's name.
  • The NLRB also invalidated language in a policy that prohibited employees from making disparaging comments when discussing the company or supervisors, coworkers or competitors, or language prohibiting discourteous behavior, if the policy did not at the same time inform employees that it did not apply to protected conduct.
  • In another matter, the NLRB invalidated a policy that prohibited "inappropriate discussions" about the company, management and/or coworkers because the policy could be applied to restrain protected activity. The policy did not define what "inappropriate discussions" meant and did not limit itself in a way that it would not prohibit protected activity.
  • In still another case, the NLRB concluded that the employer's policy was overly broad. It prohibited employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations of privacy or confidentiality of any person or entity. It prohibited any communication or post that constitutes embarrassment, harassment, or defamation of the employer or staff member. It prohibited statements that lacked truthfulness or might damage the reputation or goodwill of the employer, staff, or employees. There was no definition or guidance as to what the employer considered to be private or confidential, and the language was so broad that employees could reasonable think that the policy prohibited protected discussions about wages or terms and conditions of employment.
  • Employers can no longer rely on "disclaimers" in their social media policies to absolve themselves against potential NLRA violations. The NLRB has expressly stated that such disclaimers, which typically state that any conflict between the law and the social media policy language will be decided in favor of the law, are essentially of no legal value. The NLRB has also stated that policy language like, "Nothing in this policy is intended to chill an employee's right to engage in concerted activities under the NLRA" is equally unavailing to an employer.
  • Finally, the NLRB had harsh words about policies that included sweeping wording about confidentiality, disparagement, communications with media, and other topics.

In sum, social media policies are not per se unlawful. A social media policy with a reasonable scope will not result in NLRB scrutiny. Employers are still encouraged to consider implementing a social media policy, if they have not already done so, and consult with counsel about the scope and appropriateness of existing social media policies. The NLRB's report can be found at: https://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report.

Electronic Alerts are written by Barran Liebman attorneys for their clients and friends.