Employment/Labor Law Meets Social Media: Advice for Employers

Only a few years ago, employers reacted quickly (and perhaps hastily) to the development of social media and their employees’ use of social media. Initial policies were restrictive and negative: Don’t post this, don’t post that. Recognizing employees’ increased use of social media as a business and networking tool, however, the typical employer’s reaction to employee use of social media shifted and tempered to some degree. Now, the typical social media policy provides employees with guidance on “best practices” for postings on the internet, whether such postings occur on a social media site, a blog, or any other public or private forum on the internet.

Still, the typical social media policy is not without restriction on employees’ internet postings. Unfortunately for employers, how much restriction can be placed on employee use of social media is legally uncertain, and what legal guidance does exist is minimal. Most employers rightfully rely on traditional employment law principles to shape the scope of their policies. At a minimum, employers are advised to have a policy that clearly states their lawful expectations for their employees’ conduct in cyberspace, and that provides employees with guidance as to what employment laws could be violated with an improper post.

The NLRB’s Recent Reactions to Employer’s Social Media Policies

When the National Labor Relations Act (“NLRA”) was enacted in 1935, none of its supporters could have imagined the advent of social media, let alone the internet. The National Labor Relations Board (“NLRB”) has taken steps in recent years to force the issue of employer control over employee use of social media into the somewhat rigid framework of the NLRA. Under Section 7 of the NLRA (which applies to both unionized and nonunionized work environments), employees are given the “right” to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See 29 U.S.C. §§151-169. Thus, employers are prohibited from taking any action that might “chill” an employee’s ability to engage in such concerted activities, even if it means the employer’s action impacts as few as two employees.

The NLRB has either succeeded in advancing the NLRA in this age of information technology or made its application more confusing, depending on whether the audience is employees/labor or employers/management (and depending on the political whims of the members who serve on the NLRB).

In 2009 for example, the NLRB’s Office of General Counsel issued an Advice Memorandum on the then-issue of whether an employer’s social media policy “could reasonably be construed to chill Section 7 protected activity” under the NLRA.¹See In re Sears Holding (Roebucks), Case No. 18-CA-19081. In that case, the employer had promulgated a social media policy that prohibited employees from making a posting that, inter alia, “disparage[d]” the “company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.”

The Office of General Counsel recommended dismissal of the complaint “because the Employer’s Social Media Policy cannot reasonably be interpreted to prohibit Section 7 protected activity,” mainly because the policy included examples of proscribed activity, “the vast majority of which are clearly not protected by Section 7.” The Social Media Policy provided “sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions.” There was no evidence that the employer had used the policy to discipline any employee for engaging in protective activity, or that the policy was promulgated in response to a union organizing campaign.

The NLRB’s position on social media policies shifted in October 2010. See
Complaint and Notice of Hearing, American Medical Response of Connecticut, Inc. (“AMR”), Case No. 34-CA-12576 (NLRB Region 34, October 27, 2010).²The October 2010 Office of General Counsel Advice Memorandum is available at http://op.bna.com/pl.nsf/r?Open=byul-8knlyf. The Complaint and Notice of Hearing, American Medical Response of Connecticut, Inc. is available at http://op.bna.com/pl.nsf/r?Open=dapn-8azn2n. In that case, the NLRB charged that AMR had unlawfully terminated an employee for posting disparaging comments about her supervisor in violation of Section 7 of the NLRA. A portion of the NLRB’s complaint also focused on the employer’s “Blogging and Internet Posting Policy,” which prohibited employees from, among other issues, “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” The matter settled in February 2011, before a hearing on the complaint was heard and before any binding legal precedent was established relating to the employer’s “Blogging and Internet Posting Policy.” Although AMR denied the allegations in the NLRB complaint, it did agree as part of the settlement to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work,” according to a Feb. 8 NLRB statement.³The NLRB statement is available at http://www.nlrb.gov/news/settlement-reached-case-involving-discharge-facebook-comments.

To remain in compliance with the ever-changing NLRB landscape, employers should consider adding provisions to their existing social media policies that state: (1) Nothing in the policy is intended to chill an employee’s rights under the NLRA; and (2) Any conflicts between policy language and the current state of relevant law will be decided in favor of the law. Employers should consult with counsel about continuing to use no-disparagement provisions in social media policies to ensure compliance with NLRB precedent.

The following are some other provisions employers should consider including in their social media policies, and a discussion of the relation of such provisions to current employment law.

Require Employees to Keep Postings “Clean” (and Legal)

Notwithstanding the NLRB’s activities described above, employers still have legal leeway to set some limits regarding what employees “say” on the internet. Employers may, for example, lawfully prohibit postings that could create a “hostile work environment” or that would otherwise violate the law. Because employers can be held accountable under certain circumstances for unlawful harassment that occurs outside the four walls of a job site or normal working hours, employers must also be vigilant about internet postings that create the same risk and take steps to address the offensive posting (and the person who made the post). For the NLRB’s position on the issue, see Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Village-Livonia (07-CA-44877; 343 NLRB No. 75) Nov. 19, 2004 Decision and Order
⁴The Decision and Order in Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Village-Livonia is available at http://op.bna.com/pl.nsf/r?Open=byul-8knmxz. (holding that, inter alia, the maintenance of work rules prohibiting “abusive and profane language,” “verbal, mental and physical abuse,” and “harassment … in any way” could not reasonably be understood as interfering with employees’ Section 7 rights under the NLRA).

Thus, employers are strongly urged to include a provision in their social media policies prohibiting employees from posting anything on the internet (regardless of whether the source is open to the public or password protected) that could be construed as an act of harassment, a threat, or other evidence of discrimination. Such a prohibition could extend to applicants, current or former employees, clients, and competitors. Finally, the policy should remind employees that they could be legally responsible for the content of their personal internet postings (assuming the posting is considered defamatory, obscene, proprietary or libelous by any offended party (not just the employer), or a posting that otherwise violates the law.

Require Employees to Use “Work Time” for Working, Not Posting

When an employee is truly “on the clock” for an employer, the employer can dictate what the employee does during working time. Thus, other than during those periods of non-work time the Fair Labor Standards Act or corresponding state wage and hour law require (such as meal periods and rest breaks), employers may lawfully prohibit their employees from using compensable “work time” to blog, surf the internet, update their Facebook page, etc. A simple way to describe this in a social media policy is to: (1) Remind employees that the creation and publication of personal internet postings may not interfere with an employee’s work time, deadlines, or other obligations to the employer; and (2) Require employees to make personal internet postings during nonworking hours, meal periods and/or rest breaks.

Implement a Policy Prohibiting Almost Everyone From “Digging for Dirt”

Curiosity has led more than one employer to “Google” an applicant in lieu of (or in addition to) running a “professional” background check under the auspices of the Fair Credit Reporting Act. Although it appears harmless, such a search could result in a violation of Title VII or other federal or state equal employment opportunity laws. This is because an employer could, even subconsciously, make an employment decision based on the applicant’s protected class status as seen on the internet, or worse, have a traceable record of “Googling” an applicant with an obvious protected class status and not hire that person. Simple internet searches of individuals could reveal, for example, that they are cancer survivors, married to someone of another race, or even smokers (a protected class status in some states).

Although not recommended, if an employer chooses to do background checks on applicants using the internet, certain safeguards should be put in place to ensure that the process and hiring decision is not tainted by impermissible bias or animus: (1) Implement a policy stating that no one is authorized to do a background check on prospective, current or former employees unless an individual or job classification is specifically designated by the employer’s policies; (2) Modify the applicant-signed authorizations to do background checks to clearly state that internet background checks may be conducted; and (3) Arrange for individuals outside the prospective employee’s chain of command to do the background check and report back only those relevant “discoveries” that have no connection to the applicant’s protected class status(es). Above all else, the employer should articulate and document a legitimate, business- related need for the internet background check before the search is conducted.

Ensure That the Employer’s “No References” Policy Applies Equally in Cyberspace

Most employers rightfully have policies prohibiting anyone from giving references about former employees. Most employers also typically limit any information disclosed about a former employee to the former employee’s dates of employment and positions held. All employers should ensure that these practices/policies apply to “references” or other communications on the internet that could be construed as positive comments about a former employee’s job performance. Such employee-sponsored internet postings are troublesome for employers who are trying to control information about why an employee’s employment ended (and the confidentiality that surrounds such a decision). From a legal perspective, an employer’s stated reason for termination (e.g., substandard performance) becomes questionable when the terminated employee’s coworkers describe him or her on the internet in an opposite light (e.g., as an accomplished, successful worker).

Thus, social media policies should educate employees about the scope of the employer’s “no references” policy, and particularly discourage employees from giving LinkedIn “recommendations” to former employees or similar positive accolades (managerial and supervisory employees could be outright prohibited from providing such “recommendations”).