The Latest Do’s and Don’ts With Social Media Policies

By now, you know that your company needs to have policies that pertain to social media. Just as it has become fairly commonplace to have workplace policies addressing discrimination and harassment, you are at least past stage one when it comes to understanding that you have to have something about social media and your employees’ use of social media. So now it is time to enter stage two and determine what you can and cannot say and do.

Overview—The Company Mindset

Some companies take the “ostrich approach” and bury their heads in the sand, pretending either that social media has no impact on business or that social media is a fad that will quickly fade away. But as we find ourselves in mid-2014, we have started to learn that the opposite is true: (1) social media, and its use by your company’s employees, does have an impact on your business, whether it is productivity lost due to time spent on social media or exposure to legal claims by your employee or a third-party due to statements or conduct on social media; and (2) social media is very much here to stay.

The ever-burgeoning numbers on Facebook, LinkedIn, and Twitter bear that out, as does the daily introduction of new social media platforms and forums about which only our kids are seemingly aware. Just to highlight a few staggering statistics: according to reports, Facebook hit the 1.9 billion active monthly user mark as of late last year, with its revenues rising by 60% to reach a paltry $2.02 billion. Similarly, reports state that more than 300 million registered users are on LinkedIn, adding more than 23 million members since the start of this year alone. Social media is neither a fad, nor on the back nine of its existence.

On the other end of the spectrum, some companies take the “shark approach” and act as the aggressive predator against anything and everything that employees say or do on social media, whether on their time or company time. But here, again, we have learned that it is not about taking such an extreme approach and attempting to over-regulate and ban everything. In the end, it is about how your company manages the realities of social media and its effect on your employees and the workplace. The key, therefore, is to understand and stay abreast of legal developments and trends in this area, and then to act in a measured way based on what truly are your company’s narrowly-tailored, yet readily defined, business interests.

We expect that companies will continue to see a rise in harassment, discrimination, and retaliation claims based on employee comments or activities on social media. Employees, as is the case with human beings in general, appear to feel more comfortable saying and posting things through social media—often alone, from the comfort of their own homes—than they might feel when engaged in an in-person conversation at the office water cooler. It is critical for employers to continue to understand that traditional workplace claims apply to the more modern social media platforms, and to ensure that workplace practices and policies are updated to match today’s realities. Do your social media policies and practices represent the appropriate balance when it comes to managing social media and your workplace?

The National Labor Relations Board (NLRB) is a federal government agency that was created back in the 1930s, and was primarily charged with addressing elections for labor unions, and investigating and remedying unfair labor practices. ¹See National Labor Relations Board, http://www.nlrb.gov. However, since the start of President Barack Obama’s administration, the highly political NLRB has become extremely active in its rule-making, administrative decisions, and legal guidance memoranda, on the issue of workplace policies that either address social media on their face, or involve other workplace policies that may implicate social media in some way.

At the heart of the issue is the right that covered employees expressly have under Section 7 of the National Labor Relations Act “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]” ²29 U.S.C. § 157. An employer will violate the Act if its policy would “reasonably tend to chill employees in the exercise of their Section 7 rights.” ³In re Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998). In turn, a policy might “chill” employees if: (1) the policy explicitly violates Section 7; (2) an employee would reasonably construe the policy’s language to prohibit Section 7 activity; (3) the policy was promulgated in response to union activity; or (4) the policy has been applied to restrict the exercise of Section 7 rights. ⁴In re Martin Luther Mem’l Home, Inc., 343 N.L.R.B. 646 (2004). Your company should hold up its policy to the mirror of that standard.

The right to engage in protected concerted activity under Section 7 generally involves more than one employee (i.e., the “collective” activity) speaking or engaging in conduct having to do with the terms and conditions of their employment (i.e., the “protected” concerted activity). This right is not, as some still believe, a right afforded only to unionized employees, but one that also applies to a nonunion workplace. It is also not a right that applies only to labor strikes and picketing on the company’s front lawn, or collective activity engaged in by the office water cooler. In the 2014 version of our virtual workplaces, and with this new technology era, the right to engage in protected concerted activity applies to statements and conduct on social media. The NLRB has acted, and your company should, too, by developing the appropriate mindset when it comes to how you attempt to regulate such statements and conduct through your policies.

Recent Do’s and Dont’s

In an effort to find the elusive common denominator when it comes to which social media policies and practices pass NLRB muster, it is useful to review recent NLRB positions on five common workplace issues.

1. Prohibiting Employees From Being Discourteous, Inappropriate, Disparaging

Many companies have a policy like this:

• All employees are expected to be courteous, polite, and friendly, both to customers and to their fellow employees. The use of profanity or disrespect to a customer or co-worker, or engaging in any activity which could harm the image or reputation of the Company, is strictly prohibited.

The first sentence was found to be a permissible attempt to maintain order in the workplace, and promote harmonious relations between and among employees and customers. ⁵In re Boch Imports, Inc., No. 01-CA-083551 (N.L.R.B. A.L.J. Jan. 13, 2014), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458156e0ec. Indeed, a generalized statement that employees should “treat everyone with respect” was similarly found in another case to be lawful, as it did not seemingly cross the line between “permissible and impermissible as far as vagueness.” ⁶In re General Motors, LLC, No. 07-CA-053570 (N.L.R.B. A.L.J. May 30, 2012), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4580a372a9. However, in another case, a policy that prohibited a “discourteous or inappropriate attitude” was deemed impermissibly overbroad and imprecise, because it could serve to cast a wide net over protected disagreements, conflicts, or discussions about protected concerted activity. ⁷In re First Transit, Inc., 360 N.L.R.B. No. 72 (2014), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4581671540.

The second sentence of the above-quoted policy was deemed unlawful, as it was arguably susceptible to being understood by an employee to limit the right to strike, or engage in a lawful workplace stoppage or other form of concerted activity. ⁸Id. Put another way, just because your company believes that protected concerted activities may harm your image or reputation does not make the activities any less protected.

Other policy statements, such as “use technology appropriately,” ⁹In re Target Corp., 359 N.L.R.B. No. 103 (2013), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4581150ea5. as well as prohibitions on making “disparaging or defamatory comments” about the company or its employees, ¹⁰In re Dish Network Corp., No. 16-CA-62433 (N.L.R.B. A.L.J. Nov. 14, 2012), available at http://op.bna.com/tpif.nsf/r?Open=mlon-928t5g. and on saying something online that may “damage any person’s reputation” ¹¹In re Costco Wholesale Corp., 358 N.L.R.B. No. 106 (2012), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4580c45356. have similarly been found to be unlawful because they are overbroad and could be construed as restricting, for example, employees from discussing wages, hours and working conditions, or otherwise collectively voicing objections to company practices. Most recently, the NLRB found that a broad policy prohibiting employee “gossip” was unlawful because the term “gossip” is too subjective, and could force employees to have to choose between violating some subjective standard of what the employer likes and does not like, or engaging in protected discussion about work conditions.

2. Prohibiting Employees From Wearing Pins or Other Insignia

Many companies attempt to regulate what employees may wear or attach to their outer clothing, either in the name of a dress code or safety. Here, too, your company should appropriately toe the line between the impermissibly vague and the appropriately defined.

For example, a recent case involved a policy that stated: “Employees who have contact with the public may not wear pins, insignias, or other message clothing.” ¹²In re Boch Imports, Inc., supra note 5. The decision there noted the need for a balancing approach that would recognize the right of employees to wear union insignia, on the one hand, with the right of employers on the other hand to take reasonable steps to ensure discipline and the safe production of goods and services. The problem with the policy in that case was that it effectively served as a blanket prohibition of wearing everything, without regard to circumstances.

So while a ban on wearing pins was deemed acceptable after a showing of a safety or equipment risk, a prohibition on wearing “insignias, or other message clothing” potentially infringed on employees’ rights to express themselves in a manner that constituted protected concerted activity. ¹³Id. Similarly, a policy that forbade employees from wearing baseball caps, except for company-logo baseball caps worn with the bill facing forward, was held to violate the law. ¹⁴In re World Color (USA) Corp., 360 N.L.R.B. No. 37 (2014), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45815ab487. While the company enacted that policy as part of its safety code, intending to avoid gang insignia and symbolism, there was no actual evidence presented that any and all insignia other than the company’s own logo would pose a safety hazard, and thus the overbroad language could chill an employee from promoting a union or otherwise engaging in protected “speech” through his or her baseball cap.

3. Prohibiting the Depiction of Company Logos

The flip side of a ban on wearing anything other than the company’s logo is a policy that prohibits an employee from depicting or using a company logo for any reason. Such a policy was deemed unlawful in its overbreadth and lack of any appropriate balance:

• Employees would reasonably understand the rule to prohibit the use of the Employer’s logo or trademark in their online Section 7 communications, which could include electronic leaflets, cartoons, or even photos of picket signs containing the Employer’s logo … . [The company’s] interests are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity related to their working conditions. ¹⁵Giant Food LLC, No. 05-CA-064793, Advice Memorandum (Mar. 21, 2012), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458132b26a.

You are likely starting to see a trend emerge, as the NLRB asks that you consider what it is you are looking to protect and why, and not simply wield a hard-and-fast rule banning everything, when you could be unnecessarily prohibiting protected concerted activity. In this context, narrowly tailored prohibitions on the use of company logos for commercial (and competitive) purposes, as well as a requirement that employees respect all copyright and other intellectual property laws, are far better than a blanket restriction on depicting company logos in any manner and for any reason.

4. Prohibiting Photos and Videos in the Workplace

Is there anyone out there—other than me—who has not taken a selfie? Is there anyone out there who does not have a camera phone with them at all times, including at work? A clear subset of our current technology era is that we live in a visual, pictorial world: fewer words sometimes, and greater reliance on pictures and videos. Pictures and videos of everything. It was only a matter of time that we would reach the inevitable intersection of employee photography with the employer fear of the outside world seeing anything that goes on within the four walls of the office. All employers are Willy Wonka, and every workplace is the heavily guarded chocolate factory.

Yet, the NLRB says that employers need to engage in a balancing act here, as well. For example:

• We further find that the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities. ¹⁶Id.

The problem in that case was the overbreadth of the prohibition, while a similar policy implemented by another company may have been struck down because of the inconsistency in its enforcement. In the other case, the policy stated that the use of cameras or cell phones “to capture images or video is prohibited without a valid business need and an approved Camera Permit that has been reviewed and approved by Security.” ¹⁷In re The Boeing Co., No. 19-CA-090932 (N.L.R.B. A.L.J. May 15, 2014), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458171835c.

The company there was trying to protect information from being disclosed to third parties; yet the problem was that the term “business need” was too nebulous, and the company was not consistently enforcing its ban. It might have been OK if the company wanted to have an outright ban on photography or videos in the most competitive parts of its facility; however there was evidence that members of the public were occasionally allowed to go to and remain in those purportedly competitive areas. Thus, the inconsistent application and enforcement of the policy was its undoing.

5. Prohibition on Disclosing Confidential or Company Information

Many companies have, for years, admonished employees not to disclose “confidential information” or proprietary “company information,” paying particular attention to employee discussions about compensation. Social media has upped the ante a bit, as employers are even more fearful of such information more quickly and easily becoming a topic of discussion among co-workers, and getting in the hands of competitors.

However, the national and local trend continues to favor transparency in the workplace, as initiatives from President Obama to local municipalities have attempted to regulate minimum pay and pay inequity issues by promoting transparency and discussion about wages by and among the wage earners. Additionally, the NLRB continues to take the position that wage-related information is precisely the type of “protected” information that cannot be shielded from co-worker discussion. In that vein, consider policies that have caught the NLRB’s ire.

In one, employees were told that they “may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” ¹⁸In re Direct TV U.S. DirectTV Holdings LLC, 359 N.L.R.B. No. 54 (2013), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d4580f1cab9. The term “company information” was defined to include all employee records. The policy was held to be unlawful because the term “company information” was amorphous, and the policy failed to expand on its meaning or define the parameters of the term. In other words, employees might understand the policy to prohibit any discussion about wages, discipline, performance ratings, and other indicia of their working conditions.

In another, a policy read:

• Remember: NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination… .
• The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party [might result in discipline up to, and including immediate termination.] This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records. ¹⁹In re Hoot Winc, LLC, No. 31-CA-104872 (N.L.R.B. A.L.J. May 19, 2014), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45817238ca.

The first sentence explicitly restricted protected concerted activity, and was deemed unlawful. The second and third sentences, although not explicitly infringing on Section 7 rights, were still found to be unlawfully overbroad because they could be reasonably interpreted to preclude a discussion about wages or internal working conditions. And, in a more recent case in early June, an ALJ stated that an employer cannot even prevent employees from disclosing customer locations where they worked. ²⁰In re Prof’l Elec. Contractors of Conn., Inc., No. 34-CA-071532 (N.L.R.B. A.L.J. June 4, 2014), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458175df21.

The Company Takeaway

This article ends where it began: It is critical that your company develop the appropriate mindset when it comes to managing social media use by your employees, and creating (or refreshing) your social media policies and practices. It is not clear at this juncture which, if any, of the above positions will ultimately stand the test of final court review. Until that time, there are a few best practices to consider as a takeaway.

First, avoid general, overbroad, and undefined terms. Read each portion of your policy and ask yourself whether an employee could (reasonably?) interpret that rule as chilling protected concerted activity.

Second, avoid overly subjective terms that place much discretion in the hands of company decision makers as to what does and does not violate the policy, but little advance knowledge in the minds of employees as to precisely what is prohibited.

Third, consider what your company’s real business interests truly are that need protecting, and narrowly tailor your workplace rules to accomplish that.

Fourth, apply and enforce your policy consistently, and in a manner that reflects a true intention to protect valuable company interests.

Fifth, continue to stay abreast of all (daily?) developments in this area of the law, and discuss any uncertainties with counsel.