The Age of Corporate Social Media Policies 2.0 (aka What the NLRB Did This Summer)

On August 18, 2011, the National Labor Relations Board’s (NLRB) Acting General Counsel released a report concerning social media cases in the past year. Anyone involved with developing or enforcing social media policies should read this report, coupled with the September Hispanics United of Buffalo decision. Together, these developments have ushered in a new age in drafting corporate social media policies.

There are some misconceptions among employers that the NLRB’s activity only applies to companies that work with unionized employees or to employee attempts to unionize. In fact, the NLRB investigates a much broader set of unfair labor practices under Section 7 of the National Labor Relations Act (NLRA). Accordingly, the Board has examined whether 1)employers improperly terminated or disciplined employees because of social media posts that were really a “water cooler” discussion of workplace conditions or 2) employers maintain overbroad policies that unduly restrict its employees in their use of social media.

A few trends emerge from the NLRB’s late summer report:

1) WITH FRIENDS LIKE THESE…: In most instances, the social media post came to the employer’s attention via a “friend” of the employee who could see the post without resorting to subterfuge. This is great evidence for an employer to use in encouraging a separation of professional and personal life online. While such a bright line has become increasingly hard to establish, social media sites are slowly responding to the public outcry for some control over information. Employees should be encouraged to check privacy settings often and keep up with changes on their social media platforms.
2) CLASH OF CULTURES: The NLRB report espouses some standards that clash with important precedents in other areas of the law. For example, the NLRB states that a policy that prohibits unapproved use of company intellectual property is likely to be overbroad. This flies in the face of basic intellectual property law principles. Until we have some court precedent that weighs the competing concerns, employers will have to walk a fine line between protecting themselves and maintaining their employees’ rights.
3) WHAT HAPPENED TO CIVILITY: Over and over in the NLRB’s report, we see examples of employees using heinous language and comporting themselves in an objectionable way. It seems the NLRB is willing to tolerate a lot in this regard. It looks to see if the employee’s behavior is sufficiently “opporobrious” or “egregious” to render him or her a useless employee. While the NLRB is not making new law here and is clearly relying on established precedent when it defends employees, it ignores the power of social media. The NLRB does not seem to understand that bawdy language in social media has a far broader reach than does such activity at the water cooler. This is not good news for employers.
4) CONFIDENTIALITY UNDER ATTACK: Similarly, in defending employees’ right to discuss their work environment, the NLRB appears unwilling to deal with the ramifications of public airing of dirty linen. See my blog post of September 12, 2011  for my modest proposal on how employers can fight back to try to maintain some privacy.

In my next post, I will review some steps that employers should take with regard to their social media policies to avoid a complaint before the NLRB.