In the frenetic early days of social media foward-thinking companies thoughtfully sat down and crafted sensible policies to help guide employees who had suddenly turned into web publishers.The companies recognized the risks involved, whether the employee was acting recklessly, or merely writing down unacceptable material without realizing the implications. It was still a small area of risk.
Things change. Facebook has launched as a public company worth billions (although apparently not worth $100 billion). Social media is challenging traditional media in several different way.
You would think that employers should be even more aggressive about curtailing employees and making it clear what is acceptable and note. The National Labor Relations Board apparently thinks otherwise. The NLRB has released its third report on social media cases brought to the NLRB [pdf].
Good luck trying to figure out what the NLRB considers acceptable in a social media policy and what it considers unacceptable.
- Illegal: A policy that prohibits the “release [of] confidential guest, team member or company information”.
- Legal: A policy that cautions employees to be suspicious when asked to disclose confidential information.
- Illegal: “Get permission before reusing others’ content or images”.
- Legal: “Respect all copyright and other intellectual property laws.”
Offensive or abusive language:
- Illegal: “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline”
- Legal: “Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers”.
- Illegal: Requiring employees to be “completely accurate and not misleading”.
- Legal: “Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly.”
- Illegal: “Do not reveal non-public information on any public site.”
So not everything a policy may work, so how about a savings clause like this?:
This policy is for the mutual protection of the company and our employees, and we respect an individual’s rights to self-expression and concerted activity. This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.
The NLRB says no. A savings clause “does not cure the ambiguities in a policy’s otherwise unlawful provisions.
On the bright side, the NLRB did include the complete text of a social media policy that the NLRB considers lawful.
- May 30, 2012 NLRB report on recent social media cases (.pdf)
- January 25, 2012 NLRB report on recent social media cases (.pdf)
- August 18, 2011 NLRB report on recent social media cases (.pdf)
- After NLRB’s Memo, Drafting Employment Policies Got Trickier by Daniel Schwartz in the Connecticut Employment Law Blog
- Want a labor-law-legal social media policy? Bookmark this, I guess. by Eric B. Meyer in The Employer Handbook
- NLRB’s position on social media policies remains a bungled mess by Jon Hyman in Ohio Employer’s Law Blog