While social media has been around for a while, there are still aspects of it that are very new, such as policy development. Such policies have to stand the test of time and evolve as the workplace—and the social media platforms and their usage—changes.
In August, the National Labor Relations Board (NLRB) released a report on the outcome of investigations into 14 cases involving the use of social media and employers’ social media policies. The NLRB is an independent agency in the U.S. government that protects employees' rights to join together to improve wages and working conditions, with or without a union.
Here’s an overview of the report and some pointers on what your company should consider when it comes to social media policy development.
Why is this report important?
Eric B. Meyer, a partner in the labor and employment group of the law firm Dilworth Paxson LLP, explains the report's significance. “It provides a window into what the NLRB considers legal and illegal, not only with respect to employers who discipline employees based solely on social media content that employees publish, but also as to social media policies that employers implement.”
So the report isn’t exactly the law. But it is one of the first detailed explanations about how existing laws are applied to social media policies and practices at work. It gives specific examples of policies, statements and conduct that is and isn't okay.
Heather Bussing, an independent employment attorney, outlines the advantage the NLRB report provides. "The law is statutes and published decisions by the courts. Agency decisions and regulations are also considered law as long as they’re consistent with the statutes and court decisions. An agency report explaining its thinking and how it has applied statutes and cases to specific situations is about as close to 'the law' as you can get. So having a bunch of examples issued lets us have a better picture of what will and won’t get us in trouble, and that is probably even more useful than the law.”
Defining media and social media
One of the interesting aspects of the report is the mention of “employers’ social and general media policies.” Mark Neuberger, with Foley & Lardner LLP, a global law firm representing management in all aspects of labor and employment law, believes the report might suggest they are the same for the purposes of policy development. “The NLRB is concerned with protecting an employee’s right to engage in protected concerted activity, regardless of the medium in which that right is expressed. Before social media, Board case law dealt with expression in verbal speech, written speech and even symbolic speech—the use of inflatable rats being just one example of expressive speech.”
Bussing breaks down for us the definition of "protected concerted activity" and why we need to pay attention to it:
“Criticism of an employer’s practices about wages, hours and working conditions is protected no matter how it is expressed as long as it is ‘protected, concerted activity.’ ‘Protected’ is any statement about wages, hours or working conditions. ‘Concerted’ means the employee’s statements were ‘engaged in with or on the authority of other employees.’ So the statement has to be about working conditions—it can’t be a personal attack that is ‘so disloyal, reckless or maliciously untrue’ that it loses protected status. The statement also has to be directed to other employees or to the company on behalf of the employees—not just personal gripes, honking or wailing. But it doesn’t matter where or how the employee makes the statement if it is also ‘protected’ and ‘concerted.’”
And nowadays, that "where" includes Facebook, Twitter, Google+ and others. Bussing notes, “The report focuses both on where, how and to whom the statements were made. It also explains the limits of the protections—offensive and critical statements that are personal attacks rather than criticism of the wages, hours or working conditions are generally not protected.”
For businesses with no policy
Even if you don’t have a defined social media policy, this report might still have an effect on your decisions. Meyer says, “Regardless of whether you have a policy, the NLRB takes the position that—except in very limited circumstances—you can't discipline employees who discuss workplace responsibilities and performance together online, even if the online conversation includes swearing, sarcasm or insults.
On the bright side, Bussing adds, “At least you won’t get in trouble for your policy. But before you fire someone for being a complete jerk, think about whether the employee was being critical of wages, hours or working conditions and was communicating to or for other employees.”
For businesses with a policy
For organizations with a policy currently in place, Bussing suggests that you “make sure it does not try to control what the employees can say and cannot say about the company. If it does, you can be in trouble with the NLRB.” She also mentions this could be the sign of other issues within the organization.
Meyer adds, “The NLRB does not believe that employers can generally prohibit employees from discussing the company, its employees or competitors—even if the comments are disparaging.”
Don't make your policy too broad
Another noteworthy aspect of the report is that the NLRB stated in five cases that the company’s social media policy was found to be “too broad” and therefore, unlawful. Bussing explains what could be described as “too broad” when it comes to policy: “’Too broad’ is generally translated from legalese to English as: ‘It covers so many things that it’s impossible to understand what the heck it means.’" When a court or enforcement agency says a policy is ‘too broad,’ that means it's invalid, unenforceable and basically worthless. So all those well-intended protections are down the drain. And it’s worse than having no policy at all, since you could have a National Labor Relations Act (NLRA) violation because of the policy.
A no-brainer example of a policy that violated the NLRA was the blogging policy that prohibited employees from "making disparaging remarks about the company or its supervisors" and from talking about the company "in any media without the company’s permission."
But another policy that violated the NLRA was one that prohibited employees from saying anything on social media that would ‘violate, compromise or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity." While this was probably intended to protect trade secrets and confidential medical or financial information, a tweet complaining about your cubemate’s smelly burrito (or its foreseeable consequences) could violate this policy.”
Meyer suggests, “To avoid this problem, an employer should carefully tailor his social media policy to serve a legitimate business interest which, at the same time, is not intended to interfere with the employees’ right to form a union or engage in other protected concerted activity.”
A caution about monitoring
Speaking of unions, Neuberger offers an additional observation about monitoring activity. “First, under the NLRA, employers are prohibited from engaging in ‘surveillance’ or monitoring employees in exercise of their right to form and join a union." If an employer monitors social networking sites to determine who the union sympathizers and organizers are, they have engaged in an unfair labor practice. "The second is that when employers discipline or discharge for violations of a computer usage or social media policy, they can expect the employee to claim discriminatory enforcement. The problem employers face in defending such claims is that misuse of the computers and Internet is so prevalent in all workplaces that the employee stands a good chance of showing the employer ‘knew or should have known’ that there were other, more egregious violations of policy that were overlooked by the company.”
The National Labor Relations Board report isn’t designed to scare anyone. In fact, just the opposite. It’s been released to offer insights into and guidance for workplace social media. This will help to develop policies and use social media in a responsible way as we move forward and social media goes more mainstream.
It also means that like many of the guidelines and policies we have around the workplace, we must clearly define our expectations, communicate with and train our employees and hold people accountable.