After months of confusion, the National Labor Relations Board recently provided guidance about when company social media policies violate federal law by intruding on protected employee rights, and what steps employers can legally take to regulate employee statements about the company on social media sites.
Since 2010, the NLRB has taken the position that employee postings to social media sites such as Facebook could be "protected concerted activity" – statements regarding terms and conditions of employment designed to bring about workplace changes. Under such a designation, an employer is legally prohibited from disciplining an employee for negative or derogatory postings about the company even where the post violates a company's social media policy.
This left companies wondering what steps they can legally take to protect their reputations from cyberspace attacks by their own employees. Unfortunately, a number of prior NLRB decisions and reports about social media cases provided little guidance.
Last month, the NLRB released a report (www.nlrb.gov/news/acting-generalcounselissues-second-social-media-report ), which reviews several decisions regarding social media policies and concerted protected employee activity. One case is particularly instructive because the policy was first found to be unlawful but then passed NLRB muster after the company revised it.
The initial policy prohibited "discriminatory, defamatory, or harassing web entries about specific employees, work environment or work-related issues on social media sites." The NLRB found this language unacceptable because "[t]he listed prohibitions, which contain broad terms such as 'defamatory' entries, apply specifically to discussions about work-related issues, and thus would arguably apply to protected criticism of the Employer's labor policies or treatment of employees."
The company amended its policy to instead prohibit company-related posts that are "vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer's workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic."
The NLRB approved the amended version because the prohibited conduct is limited to clearly inappropriate activity and the policy does not prohibit comments regarding workplace conditions.
As companies come to terms with the power of social media, they must narrowly tailor social media policies to prohibit "plainly egregious conduct," as opposed to issuing sweeping generalities that potentially infringe on employees' right to openly discuss working conditions.
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