Federal ruling limits scope of social media policies

by on December 3, 2012 · 0 Comment POSTED IN: HR Cafe

What should your social media policy say? What should you encourage employees to do when using social media, and, even more important, what can you prohibit them from doing?

If you’re asking yourself these excellent questions, it’ll help to know what the National Labor Relations Board (NLRB) has just ruled in a precedent-setting social media case.

This isn’t the first word from the NLRB on social media. Beginning a year ago, the board’s chief counsel issued three reports giving his legal opinion on which kinds of employer policies and practices are legal, and which aren’t.

But the new case – NLRB v. Costco Wholesale Corp. – is the first one where the board itself has issued a legally binding ruling. So it’s worth looking at.

Concerted activity
To begin, let’s remember why the NLRB is involved in the first place.

The National Labor Relations Act (NLRA), which the board enforces, protects certain “concerted activities” by employees in union and non-union workplaces. And the board has made clear that some employee uses of Facebook, Twitter, LinkedIn, etc. may amount to concerted activities under the Act.

In the Costco case, the employer had a section in its employee handbook prohibiting employees from electronically posting statements that would damage the company or any person’s reputation.

Policy language
The board found that this prohibition was too broad, and would discourage employees from engaging in concerted activities for “the purpose of collective bargaining or other mutual aid and protection,” as the NLRA puts it. Even if a workplace isn’t unionized, and its workers aren’t trying to unionize, talking critically about the employer and/or its managers – including via social media – may be one of these concerted activities.

The exact language of the faulty Costco policy is worth repeating here, if only to help you avoid it in your policy:

“Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”

What you can say
OK, it’s great to know what you shouldn’t say in your policy. But what can you say?

Fortunately, the NLRB gave some guidance here, too.

The board pointed out that there’s nothing wrong under the Act with banning employee conduct that is malicious, abusive or unlawful. You can put such a prohibition into any relevant policy, including one on social media.

The board also said it’s OK to have a policy that prohibits such behaviors as verbal abuse, harassment, profane language, or acting in an injurious, threatening, intimidating or coercive way toward other employees.

Attorneys at the Mintz Levin law firm in Boston, commenting on the board decision, said there’s also nothing wrong with a policy barring disclosure of certain information via social media: employer trade secrets, proprietary information, or co-workers’ private information.

A sample policy
Other material that may help you in crafting a legally acceptable social media policy comes from the report of May 2012 from the board’s chief counsel.

In it, he included an example of a specific employer’s social media policy that passes muster as far as the NLRB is concerned. (The company’s name isn’t given.) You might consider using this policy as a template for your own.

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