Social Media Policies and Enforcement Risks

Technology has been a boon for productivity.  Social media has replaced many traditional advertising and information sources.  Some enjoy all the new gadgets, technologies and instant communications.  Others do not.  Whatever your view is, it is clear that social media has increased risks of litigation and enforcement.

Sometimes the risks of enforcement come from unlikely actors.  In the social media context, the National Labor Relations Board has taken an active role in reviewing and enforcing labor laws involving employers’ social media policies.

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The NLRB has intervened to reverse several employee firings which were based on comments employees made on Facebook.  The NLRB found that the firings were unlawful because of overly broad social media policies.

Businesses were surprised when in January 2012, the NLRB’s Office of General Counsel  issued a memorandum report emphasizing that employee rights under Section 7 of the Natioanl Labor Relations Act should be protected when implementing a social media policy or disciplining employees for social media communications.

Companies need to make sure they avoid policies which require employees to provide log in and password information.  Companies have to be careful not to adopt social media policies which require disclosure of personal information from which an employee can raise a discrimination claim or a refusal to hire claim.

The National Labor Relations Act governs employee rights to collective bargaining and union representation.  Section 7 sets forth the core protections for employees and their right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”   Employees maintain these rights whether they are a member of a union or not.

The NLRB’s memorandum makes it clear that it will challenge social media policies that infringe on employees’ rights.  First Amendment advocates support the NLRB’s active enforcement policies.  While the General Counsel’s report does not constitute binding law, the memorandum provides important insights into situations where the NLRB may act.

Managing social media policies is important and must be done carefully.  In designing and implementing a social media policy, it is important to tailor the policies to avoid common pitfalls:

1.  Draft the policy so that it clearly is limited to communications related to company products or services.  If the policy does not contain such a limitation, there is a risk it can be challenged as overly broad and unlawfully restricting employees’ communications.  A good rule of thumb question – what is the impact of the policy on communications assuming it was done verbally and not on a social media site?

2.  Include in the policy reference to anti-harassment guidelines.  Social media communications which are intended to harass another employee should be prohibited.

3.  Protect the ability of employees to communicate about “confidential information” relating to wages, hours and terms of employment. If a company tries to restrict communications on these topics, the risk of investigation will increase.  Terms and conditions of employment should not be restricted since they logically tie in to labor organization and negotiations.

4.  Prohibit all malicious or false information about the company that may harm the company or any employee if disseminated thru social media.  This prohibition cannot be broadly applied to legitimiate or protected communications; it has to be enforced in good faith.

5.  Include a general disclaimer that the company does not intend to infringe on any employees’ Section 7 rights under the National Labor Relations Act.  This is a very important point to ensure that the policy carves out any intention to restrict any employees’ Section 7 rights.

6.  Prohibit employees from using a company trademark or logo in any social media communications.  The company has the right to protect its intellectual property and should do so where necessary.

7.  Adopt clear disciplinary procedures and standards for violations of the policy.  This is a very sensitive area and should be carefully drafted and enforced.

Companies sometimes adopt two separate policies on this subject – a social media policy for employees’ personal use and another social media policy for when they are acting or representing the company.

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