Yesterday, the National Labor Relations Board's Acting General Counsel Lafe Solomon issued a new report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees. It includes a copy of a social media policy that the NLRB found to be lawful.
However, the report, as a whole, left me shaking my head. Inconsistent, overreaching, it's a hot tepid mess. So, before you go all cut and paste on me from that sample policy, read my critical two cents after the jump...
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The NLRB Memo is internally inconsistent.
Although I appreciate that the Board has offered three social media guidance memos for employers, what's most frustrating for me is that within these memos are many internal inconsistencies. Dan Schwartz at the Connecticut Employment Law Blog agrees with me that, after the NLRB's most recent memo, drafting employment policies got trickier. I found at least three internally inconsistent Board positions in the memo:
- A requirement that employees "be honest and accurate" is ok (sample social media policy), but requiring employees to be "completely accurate and not misleading" online is unlawful because as long as the published information isn't "maliciously false," it's all good. (p. 6-7). Understand the distinction? Me neither.
- A social-media-policy prohibition on sharing "Secret, Confidential or Attorney-Client Privileged Information" (p. 6-8) is ok, but various other restrictions on sharing confidential information (with a lower case "c" and "i") sprinkled throughout the NLRB memo are no good. Are capitalized terms that special? Yes, I imagine that "Secret, Confidential or Attorney-Client Privileged Information" may be defined in some other policy, but maybe not. The Board memo is silent about that.
- "Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]" is ok (sample social media policy), but a prohibition on "disparaging or defamatory" comments is bad. (p. 16-17). My head is spinning.
In his post, Jon Hyman found several others as he proceeds to open up a can of whoop-ass on the "bungled mess" that is the NLRB's position on social media policies.
The National Labor Relations Board's determination of what constitutes an overly-broad social media policy has never been court-tested.
Remember what happened recently, when the NLRB got into some aggressive rule making. Once subject to court scrutiny, it didn't turn out well for the NLRB, did it? Did it now?. At some point, a social-media policy that the NLRB deems "unlawful" will get court tested. Like maybe this one: the NLRB reaffirmed in its memo that a savings clause ("This Social Media Policy will be administered in compliance with applicable laws and regulations including Section 7 of the National Labor Relations Act") is ineffective to cure other arguably ambiguous social media policy provisions. That still leaves me scratching my head. For a list of all of the ish the NLRB found overly broad, check out Michael Schmidt's post at the Social Media Employment Law Blog. Ultimately, your level of risk aversion will determine how much you are willing to push the envelope. Until then, as Molly DiBianca blogs here at the Delaware Employment Law Blog, the NLRB is laughing all the way to the bank.
Remember that the best social media policies are tailor fit to the organization.
Among other things, they set the tone and should be conveyed in the company's voice (think: formal versus informal) and reflect the expectations of the company (is social-media use encouraged or merely tolerated). Copying another company's social media policy verbatim robs you of the opportunity to convey your personalized message and to derive value from employee use of social media. For example, the sample policy that the NLRB approved requires employees to get permission from a manager to use social media at work. Is that consistent with your company's vision?
But if you do want some "cut-and-paste" provisions...
In addition to the language in the sample social media policy, these provisions have all been NLRB-approved. (Just consult a lawyer before implementing them as part of a social-media policy. I'm not giving any legal advice here):
- Confidential Information: A prohibition on sharing "Secret, Confidential or Attorney-Client Privileged information," and "Don't let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures."
- Intellectual Property: "Respect all copyright and other intellectual property laws. For [Employer's] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer's] own copyrights, trademarks and brands."
- Common Sense and Good Judgment: "Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts--and expects--you to exercise personal responsibility whenever you participate in social media or other online activities. If you're about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don't do it."
- Discrimination, Retaliation, and Bullying: "Harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers."
- Impersonating Others: "No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President's designated agent." and "You may not represent any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer]."
