As business leaders, you know the value of your business’s reputation. One of the biggest threats to business growth is negative “word of mouth,” particularly when those words come from someone perceived to have inside knowledge, such as employees of the business.
There was a time when employees enjoyed only the limited platforms of backyard barbeques and the occasional family gathering. With the increasing use of social media, this platform has significantly expanded. Statistically speaking, most employees have a social media website that they regularly use. Also, based upon averages, your employees have between 100 to 300 “friends” who receive and comment on their postings. Depending on the settings on the account, each of the friends’ friends can view each other’s comments.
Therefore, all things considered, thousands of people could be exposed to negative comments about your business in a matter of minutes or even seconds.
Wisely, many employers have attempted to minimize reputational damage by the development and implementation of privacy policies. However, the National Labor Relations Board (“NLRB”) has stymied the efforts of businesses by closely scrutinizing employee social media use policies. This article provides guidance for creating effective social media policies without unlawfully restricting employee speech.
Policy vs. Contract
Employee policies and employee contracts are not the same. While private-sector employee policies are generally not enforceable in court, policies set the standards and define the expectations of your business for its employees. A well-drafted policy should provide guidance to employees and set the foundation for a positive corporate culture. Policies are also evidence to the NLRB or its state counterpart, the Pennsylvania Labor Relations Board (“PLRB”), of whether a business’s actions comply with federal and state labor laws.
Certain Employee Speech is Protected
A business’s social media policy must comply with labor law. Labor law prohibits employers from retaliating against employees for conferring with one another to improve the terms and conditions of their employment, and labels employee discussion to improve the terms and conditions of employment as “protected concerted activity.” Accordingly, even if a social media rule issued by an employer does not specifically forbid the employee from discussing the terms and conditions of employment, if such a rule reasonably could be interpreted as suppressing protected concerted activity, if challenged, it would be considered evidence of unfair labor practices. Critically, concerted activity is protected regardless of whether there is an existing employee union.
NLRB Examples
The following scenarios have been reported by the NLRB to provide guidance regarding the impact of federal labor law on social media use restrictions:
1. A nationwide retail operator created a social media policy titled “Information Security.” This policy instructed employees not to release confidential guest, team member, or company information. However, there was no exception for protected concerted activity. The NLRB found that this section of the policy was an unlawful restraint on speech due to possible employee misperceptions of the language. Specifically, the NLRB believed that employees could understand this to mean that they cannot discuss and disclose the terms or conditions of their employment and the employment of other employees.
2. A vehicle manufacturing company maintained a social media policy that instructed employees to be sure that their posts were “completely accurate and not misleading.” The NLRB found that this requirement was inappropriate because employees could understand it to apply to their discussions and criticisms of the employer’s labor policies and its treatment of employees. According to the NLRB’s report, employees’ statements about the terms and conditions of employment are protected, even if false, provided that the statements were not “maliciously false.” Moreover, the NLRB noted that the employer did not provide any specific examples or limit the terms in any way.
3. An international health care services company developed a social media policy restricting employees from commenting on legal matters, including pending litigation or disputes. The NLRB found that this provision was unlawful because it specifically restricted employees’ discussion on the subject matter of claims against the employer.
What do all of these examples have in common?
The absence of careful drafting. With the guidance of these three NLRB scenarios and numerous NLRB decisions, social media policies should be meticulously drafted with the assistance of a knowledgeable employment attorney.
The Delicate Balance
When drafting a social media policy for employment purposes, it is important to be mindful of the great equalizing effect of social media. As business leaders, you have driven the growth of your company, perhaps even from its inception. However, the impact of one angry and determined employee with an audience of hundreds or thousands cannot be ignored. A lawful social media policy recognizes the importance of giving employees guidance while also avoiding unlawful restrictions on protected concerted activity.
Bottom Line for Business Leaders
Particularly considering the heightened scrutiny of the NLRB, employers are strongly advised to carefully develop and consistently implement a legally sound social media use policy. To “get it right,” this will require the assistance of a knowledgeable employment attorney. As this issue continues to evolve, we will keep you informed. And as always, if you have any questions regarding social media policies, please contact us.
Employment Law News is a publication of the KingSpry Employment Law Practice Group. It is meant to be informational and does not constitute legal advice.
