by Sayema Hameed
Employee use of social media is a big topic these days. It is increasingly common to hear news of an employee getting fired for posting unfavorable comments about his or her employer on Facebook and other social media websites. As a result, in August 2011 and January 2012, the Acting General Counsel of the National Labor Relations Board Acting (“NLRB”) issued reports analyzing cases of employee termination due to social media use.
On May 30, 2012, the NLRB issued a third report on social media. This report focuses exclusively on employer social media policies and provides specific examples of what is lawful and unlawful under the National Labor Relations Act (“NLRA”).
By way of background, section 7 of the NLRA protects the right of both union and non-union employees to engage in “concerted activities” related to the terms and conditions of their employment “Concerted activity” occurs when an employee interacts with other employees or on behalf of other employees, not solely by or on behalf of the employee himself or herself.
The NLRA limits the restrictions that an employer can place on employee use of social media as it relates to the workplace. The key question in evaluating a social media policy is whether the policy language “would reasonably be construed to chill the exercise of Section 7 rights” of employees. Any language in a social media policy that “would reasonably be interpreted to chill the exercise of Section 7 rights” violates the NLRA.
The following is a list of policy language that the NLRB considers unlawful because such language could be reasonably interpreted to chill employee rights to discuss or disclose information about employment terms or conditions:
UNLAWFUL SOCIAL MEDIA POLICY LANGUAGE
– Don’t release confidential guest, team member or company information.
– Never share confidential information with another team member unless they have a need to know the information to do their job.
– Don’t have conversations regarding confidential information in the Breakroom or in any other open area. Never discuss confidential information at home or in public areas.
– If you believe there may have been unauthorized access to confidential information or that confidential information may have been misused, it is your responsibility to report that information…A violation of [Employer] policies regarding confidential information will result in corrective action, up to and including termination. You also may be subject to legal action, including criminal prosecution.
– You must be sure that your posts are completely accurate and not misleading.
– Do not reveal non-public company information on any public site, including financial performance of the company, personal information about another employee’s performance, compensation, or status in the company.
– When in doubt about whether the information you are considering sharing falls into one of the prohibited categories, DO NOT POST. Check with [Employer] Communications or Legal Department to see if it’s a good idea.
– Make sure that any photos, music, video or other content you share is legally sharable or that you have the owner’s permission. Get permission before positing photos, video, quotes or personal information of anyone other than you online.
– Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.
– Communications with co-workers on social media sites that would be inappropriate in the workplace are also inappropriate online.
– Think carefully about “friending” co-workers on social media sites.
– All employees who use social media sites must report any unusual or inappropriate internal social media activity.
– Do not disclose personal information about [Employer’s] employees and contingent workers.
– Don’t comment on any legal matters, including pending litigation or disputes.
– Don’t pick fights.
– Get permission before reusing others’ content or images.
– Resolve concerns about work by speaking with co-workers, supervisors or managers.
– Employees are prohibited from posting [Employer] information that could be deemed material non-public, confidential or proprietary information, including information about company performance, cost increases, customer wins or losses, maintenance, shutdowns, work stoppages.
– Avoid harming the image and integrity of the company.
– Employees are permitted to express personal opinions regarding the workplace, work satisfaction or dissatisfaction, wages, hours or work conditions with other employees only, as long as such discussions are not accessible to the public.
– Employees are required to report unsolicited or inappropriate electronic communications.
– Do not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, or our/their products or services.
– Do not participate in social media activities with [Employer] resources or on Company time.
– You may not communicate with media or members of the press without prior permission of [Employer].
– You must notify [Employer] of any communication involving federal, state or local government agencies that contact any employee concerning [Employer].
While the NLRB found all of the above example of social media policy language unlawful, it also found some language to be lawful, as follows:
LAWFUL SOCIAL MEDIA POLICY LANGUAGE
– Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
– Do not post information directly or indirectly related to the safety performance of [Employer] systems or components for vehicles.
– Do not post [Employer] Secret, Confidential or Attorney-Client Privileged information.
– You may disclose personal information only to those authorized to receive it.
– Respect copyright and other intellectual property laws.
– 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.
– 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.
– 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.
– You may not represent any opinion or statement as the policy or view of [Employer].
– Any comments relating to [Employer] must include the following disclaimer: “The postings on this site are my own and do not represent [Employer’s] positions, strategies or opinions.
In addition to the above, the NLRB also provided a sample social media policy that it found to be lawful in its entirety. That sample policy is attached to the end of the NLRB report, which can be found here: NLRB Report on Employer Social Media Policies.