Employees are increasingly turning to social media sites like Facebook and Twitter to share information about their jobs. To the chagrin of companies everywhere, employees are also using social media sites to complain about their jobs. More and more, employers are having to make tough decisions about when and how to discipline employees for negative posts, blogs or tweets about work. An employee can be terminated for badmouthing the boss online, right? Well, as lawyers often say, “It depends.”
While employees should think twice before making work-related posts on social media sites, employers should think, too, before taking disciplinary action—they may run afoul of the National Labor Relations Act (NLRA), a federal law that applies to both union and non-union workforces. The NLRA protects employees’ right to engage in “protected concerted activity,” including the right to discuss wages, hours, and other terms and conditions of employment.
But that doesn’t mean employers are powerless to protect themselves against employees’ online activity. A well-drafted social media policy is still the best way for an employer to preserve its brand, confidential information, and intellectual property in this new era of posts, shares, tags, and tweets.
Here are some tips on developing a social media policy for your workplace:
- Avoid Ambiguous Terms. When describing the types of social media activities that are considered unacceptable under your policy, avoid broad or ambiguous terms like “inappropriate,” “disparaging,” “disrespectful,” “discourteous,” and “offensive.” Protected concerted activity under the NLRA—whether it takes the form of picketing or a social media post—can be heated, controversial, and certainly “disrespectful.” If your policy is too broad, it may appear to restrict employees’ NLRA rights and your company may find itself in hot water with the National Labor Relations Board (NLRB).
- Define “Confidential Information.” If your policy instructs employees not to divulge “confidential information,” define that term and include specific examples (e.g., customer lists, marketing strategies) to minimize the risk that the policy could be read to restrict employees’ NLRA rights. Employees should not, for example, confuse the prohibition on discussing “confidential information” with their right under the NLRA to discuss their working conditions with outsiders.
- Give Specific Examples. The use of clarifying or limiting examples may help your policy avoid being too broad by illustrating for employees the types of social media activities that are considered unacceptable. A policy that contains examples is more likely to survive scrutiny by the NLRB.
- Savings Clauses May Not Save Your Policy. Many employers include a “savings clause” which clarifies that nothing in the policy is intended to interfere with, restrain, or coerce any employee’s lawful exercise of NLRA rights. While a savings clause may be helpful, it will probably not save a policy that is drafted too broadly and contains no clarifying examples.
- Update Based on NLRB Guidance. Remember to stay current on NLRB guidance and decisions, and to review and update your policy accordingly. For example, the Office of the General Counsel of the NLRB issued a helpful memorandum on May 30, 2012, dealing specifically with the issue of employer social media policies, and providing an example of a policy that it deemed lawful.
- Consider Other Workplace Policies. A social media policy is just the tip of the iceberg. An employee’s online activities can violate other workplace policies, such as those governing communications, discrimination and harassment, and technology. When drafting or revising your social media policy, remember to update your other workplace policies to be consistent with the NLRA.