The introduction of Social Media as a form of communication
used by employees to complain about
their jobs has caused organizations world-wide to re-think their
internal policies and procedures with regard to the use of and access to sites
such as Twitter, YouTube and FaceBook.
Restricting the use of business equipment to “for business only”
purposes covers the mainstream of accessing these sites during the work
day. However, employees are more
frequently equipped with personal computers, iPads, Smartphones and
Kindles. So how can you insure that
your employees aren’t jeopardizing confidential information of your company in
their day to day communications? Easier
said than done. The NLRB released some
guidance on May 30th of this year but even reading their specific
analysis of employer policies doesn’t guarantee that your policy is lawful with
regard to violations of the National Labor Relations Act (NLRA). Don’t stop reading here if you are
currently a non-union facility. Protected
concerted activity sometimes includes employee conduct that has nothing to do
with unions directly, as when employees act together to complain about their
work places and their jobs.
The
most recent release by the Acting General Counsel at the NLRB analyzes six
cases where employers have implemented policies and procedures that are
unlawful in some way. The report,
titled “Rules on Using Social Media Technology and on Communicating
Confidential Information” is available on the NLRB website at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies. So if you are looking for direction on
making your policy compliant, it is a good place to start. This article touches briefly on the most
common mistakes employers make in drafting their Social Media Policies.
Avoid Ambiguous restrictions. Rules that are ambiguous as to their application and contain no limiting language or context that would clarify to employees that the rule does not restrict their protected rights to engage in concerted activity, are unlawful. The NLRB advises that examples of clearly illegal or unprotected conduct be included in any such policy so that it is clear to the employee that on-line communications regarding protected activities are not prohibited. In one case the NLRB found that an employer’s policy stating “offensive, demeaning, abusive or inappropriate remarks are out of place on-line” proscribed a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees making it unlawful.
Avoid overbroad definitions of permissible contents of communications. The easiest way to explain this topic is by providing you examples of language that was all found by the NLRB to be unlawful in that it specifically encompassed topics related to protected activity. The following are unlawful excerpts from various employment policies:
“Employees must not reveal…personal information about
another employee, such as performance, compensation or status in the company”
“Don’t pick fights and avoid topics that might be considered
objectionable…remember to communicate in a friendly tone” – this rule was found
to caution employees against becoming part of a heated or controversial
discussion which is often the tone of conversations regarding working
conditions.
“Employees are prohibited from posting information regarding
Employer on any social networking site including but not limited to company
performance, contracts, customers…” – this statement was found to prohibit
discussion about Collective Bargaining Agreements and was therefore unlawful.
Avoid broad restriction on the location of communications. Where an employer prohibited employees from sharing confidential information with coworkers in the break-room, at home or in open areas and public places, the NLRB found the rule prohibited employees from discussing terms and conditions of employment virtually everywhere such discussions are most likely to occur.
Do not require completeness and accuracy of communications. Where the employers policy stated “If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public information” the NLRB found the use of the language “completely accurate and not misleading and that they do not reveal non-public information” to be overbroad. It would be reasonably interpreted by employees to apply to discussions about, or criticisms of the Employer’s labor policies and its treatment of employees. That activity would be protected by the NLRA so long as the statements are not maliciously false- they may be inaccurate or misleading. Moreover the NLRB advises that this policy does not provide any guidance as to the meaning of these terms by specific example or in any way limit the term to exclude protected activity so it is also unlawful as being overly broad.
Do not require employees to report inappropriate communications. Where employers implemented policies requiring employees to report “unsolicited or inappropriate electronic communications” the NLRB found that the requirement was overly broad and that employees would reasonably interpret this to restrain the exercise of their protected rights to communicate with fellow employees and third parties (such as a union) regarding terms and conditions of employment. Another employer’s policy requiring the reporting of “unusual or inappropriate internal social media activity” was found to be broad enough to encourage reporting of union activities and therefore unlawful. Provisions that threaten employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information were found unlawful as the provisions could be construed as requiring employees to report a breach of the confidentiality rules, which had previously been found to be unlawful.
Do not require employees to obtain prior authorization before posting. One employer implemented a policy that “when in doubt about whether the information you are considering sharing falls into one of the prohibited categories, DO NOT POST. Check with the employer’s legal counsel to see if it’s a good idea” was found unlawful. The NLRB has long held that any rules that require employees to secure permission from an employer as a precondition to engaging in protected activity violates the NLRA.
Do prohibit violations of trademarks and copyrights. An employer’s policy prohibiting employees from posting photos, music, videos, quotes and personal information was found unlawful where obtaining the owner’s permission was required. Although the employer has a proprietary interest in its trademarks and logos, the NLRB found that an employee’s non-commercial use of the employer’s logo while engaging in protected activities would not infringe on that interest. The NLRB allows employees to post pictures of concerted activity which may include photographs of picket signs containing the employer’s logo. To the extent the employer advised employees to comply with trademark and copyright law, the policy was found to be lawful.
Do not make a general disclaimer to offset otherwise unlawful restrictions. The NLRB found that the employer’s use of a general disclaimer did not cure the otherwise unlawful provisions of the Employer’s social media policy because employees would not understand from the disclaimer that protected activities are in fact permitted. The employer’s policy stated “This policy will not be construed or applied in a manner that improperly interferes with employee’s rights under the National Relations Act.” Another employer’s disclaimer stating: “ this policy will not be interpreted or applied in a way to interfere with the rights of employees to engage in concerted activity” was found to be in a language that would not be understood by a layperson and therefore unlawful.
Do require employee disclosures. The employer’s requirement that employees “expressly state that their postings are their own and do not represent the employers positions, strategies or opinions” is not unlawful. An employer has a legitimate need for a disclaimer such as this to promote its product or service, and this requirement would not unduly burden employees in the exercise of their protected rights to discuss working conditions.
Be alert to these provisions when drafting your internal policies on Social networking but also consider the language included elsewhere in your employee policies and handbooks that relates to confidentiality of information, interaction with the media, solicitation and release of company information. Polices such as these often contain language related to the communication of information in a manner other than through on line communications but which are also subject to the National Labor Relations Act and the rulings of the NLRB.
