Drafting Social Media Policies to Minimize Legal Risk of an NLRB Complaint

Last week, I discussed how the NLRB’s August, 2011 report on social media investigations has ushered in a new age of corporate social media policies. We find little solace in the recent administrative law judge ruling that Knauz BMW had fired properly an employee because some of his Facebook posts were not protected (others were). The same ruling also declared the employer’s policy overly broad and ordered the dealer to post a notice informing employees of their rights.

Employers struggle in social media to protect their confidential information, their reputations, and their intellectual property. The NLRB, on the other hand, is concerned with protecting the statutory rights of employees. As such, it has criticized social media policies that prohibit disrespectful language or negative comments, that forbid use of the employer’s intellectual property, or that protect employer’s confidentiality. Yet, these are mainstays of any employee handbook, so what can an employer do? First, stay in touch with NLRB developments. Case law is emerging rapidly. Second, here are some current tips for employers who are drafting their social media policies for the first time or reviewing their existing policies:

1. State the Policy’s Intent. The NLRB upheld a grocery chain’s policy that prohibited various employee activity in social media, but that clearly stated its purpose was to ensure clear and consistent communications with the media. Because the policy had narrow goals, the NLRB said this media policy could not be reasonably interpreted to restrict protected employee activity. The lesson here is to include a preamble stating what the policy hopes to accomplish for the employer. This introduction should also clarify that certain employee activities remain unrestricted and that the employer does not seek to chill the speech of employees discussing and seeking to improve their workplace pursuant to Section 7 of the NLRA.
2. Include Examples. I have consistently advised that social media policies include examples of the kinds of behavior that are disallowed. Using examples to flesh out guidelines becomes even more important in light of recent NLRB activity. Specific cast studies can help strengthen the employer’s defenses against a negative finding by the NLRB.
3. Be Careful with Oral Policies. When I speak at conferences, many employers tell me that they are concerned about putting their social media policies in writing. They feel this communication form is evolving too quickly, and by putting guidelines or policies in writing, they run the risk of falling behind. Others feel challenged to create a set of guidelines that works, so they instead rely on oral discussions with employees. I urge employers not to put their heads in the sand in this manner. Just as it became clear that a written sexual harassment policy was an important step in protecting an employer’s assets, so too, a written social media policy is crucial. This is particularly true given the fact patterns that show up in the NLRB’s summer report. The absence of a clearly written policy or set of guidelines makes it harder to defend against charges of an NLRA violation.
4. Train Your Supervisors. Your trainings should teach supervisors to spot “protected, concerted activity” that relates to the terms and conditions of employment. In short, the supervisors should see online discussions among employees or with supervisors as red flags requiring legal vetting before firing any employee. Note that discussions can be nonverbal; “liking” a comment constitutes a discussion. In addition, if an employee acts alone on Facebook or some other social media, but his goal is to organize or garner support for the benefit of all employees’, his activity may be protected. This is particularly true if he has previously raised the issue with management. It is crucial to delve into the facts of every situation before making a firing decision.
5. Clarify Employee Rights. Corporate social media policies should emphasize to employees, both orally and in writing, that employees are still free to exercise their Section 7 NLRA protected rights. Although last week, the NLRB postponed its new poster requirement until January 31, 2012 amidst legal challenge and public outcry, employers should be making plans now to post the requisite notice and to educate employees about what it means.