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…
- 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.
- 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].”