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Employers, Take a Good Look at your Social Media Policy
As social media participation increases, particularly Facebook and Twitter, it’s becoming more important for employers to have a social media policy in place. Equally important however, is ensuring that the policy isn’t overbroad and violates the National Labor Relations Act (“Act”). Last month the NLRB Acting General Counsel Lafe Solomon issued his third report detailing seven cases of illegal or overbroad employer social media policies that violated the Act.
The following are two examples of aspects of social media policies that were found illegal by the NLRB:
1. An employer that operated a nationwide chain of retail stores had a policy in its handbook under the social media section entitled “Information Security” which stated, “Don’t release confidential guest, team member or company information….” The memo stated that this section was unlawful because this statement could be “reasonably interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves – activities that are clearly protected by section 7.” The NLRB noted that this was illegal because employees have the right to discuss wages and conditions of employment with each other (as well as third parties) under the Act.
2. An employer who manufactured vehicles had a social media policy that, in several sections, was determined to be overbroad. Employees were instructed to make certain that their social media posts were “completely accurate and not misleading and that they do not reveal non-public information on any public site.” The report stated “the term ‘completely accurate and not misleading’ is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees that would be protected by the Act so long as they are not maliciously false. Moreover, the policy does not provide any guidance as to the meaning of this term by specific examples or limit the term in any way that would exclude Section 7 activity.” The policy needed specific examples and further guidance on how this language does not violate Section 7 of the Act.
The NLRB also noted several other overbroad handbook provisions, including one that advised employees to be careful when “friending co-workers” on Facebook because this provision could be construed as discouraging communication between co-workers, clearly a right the NLRB is trying to protect with its analysis of the social media policies. One provision the Board did find lawful was a provision that prohibited harassment, bullying, discrimination or retaliation on social media websites that would also not be permissible in the workplace even if the behavior occurs afterhours on personal computers.