CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

The most important take-home message from the NLRB: even the most seemingly benign policies can run afoul of employees’ rights.  That’s the lesson that some Very Familiar Corporations – companies like Target, General Motors, DISH Network, among others – learned the hard way. In fact, of the seven companies whose social media policies the NLRB reviewed, only Wal-Mart passed with flying colors.

As far as the NLRB is concerned, an employer’s social media policies must be consistent with Section 8 of the National Labor Relations Act (the Act). Section 8 prohibits imposition of a rule or policy on employees if that rule/policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.” In this context, the term “Section 7 rights” refers to the types of “protected activities” or “concerted activities” I described in my post last October. (Feel free to check back there now to refresh your recollection. Don’t worry, we’ll wait for you.) 

The NLRB uses a two-step inquiry to determine whether Section 8 is violated. Most obviously, a social media policy that clearly restricts Section 7 rights is impermissible. But a policy may also be unlawful if: (1) employees would reasonably construe the policy’s language to prohibit Section 7 activity; or (2) the policy was promulgated in response to union activity; or (3) the policy has been applied to restrict the exercise of Section 7 rights. 

Consistent with the way we treat the right to free speech in this country, the NLRB looks to encourage speech and frowns on corporate policies that punish or discourage speech. So if a company’s social media policy is so broad and/or ambiguous that it could be read possibly to penalize lawful speech, the rule violates the National Labor Relations Act.

Here are some examples:

Target’s social media policy required employees not to “release confidential guest, team member or company information”. It also cautioned employees not to: share confidential information with other employees unless they “need the information to do their job”; or “have discussions regarding confidential information in the breakroom, at home, or in open areas and public places”. 

All that may sound reasonable – after all, isn’t it OK to try to keep “confidential” information “confidential”? – but the NLRB thought otherwise:  “Employees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment.” Indeed, such discussions would most likely occur in precisely the places (breakroom, home, open areas, public places) specifically singled out in the policy. So the Target policy violated Section 8.

Target’s policy also advised employees that it was their “responsibility” to report “unauthorized access” to, or “misuse” of, confidential information. Again, what’s not to like about that? But the NLRB decided that that provision seemed to threaten employees for not bringing to the employer’s attention violations of the prohibitions discussed above. Since the NLRB had found those prohibitions to be invalid, the NLRB figured that Target’s reporting requirement was equally invalid.

GM’s policy discouraged “[o]ffensive, demeaning, abusive or inappropriate remarks”, and  cautioned GM employees that Internet posts about GM must be “completely accurate and not misleading” and must not “not reveal non-public company information on any public site”.  The term “non-public company information” was defined to include such matters as GM’s financial performance and personal information about other employees, such as “medical condition[s], performance, compensation or status in the company”.

Again, these might look like reasonable limitations intended to protect GM and its employees. Not so, said the NLRB. The Act allows employees to say things that are not entirely accurate (not to mention “offensive, demeaning, abusive or inappropriate”), as long as they are not “maliciously false”. Thus, GM’s insistence on “complete accuracy” was not permitted. Similarly, broad categories like employee performance, compensation and corporate status encompass topics related to Section 7 activities, so GM couldn’t properly prohibit online discussions of such matters. Nor could it generally bar the posting of photos, music, videos, and the quotes and personal information of others, or use of GM logos or trademarks – since all such postings could reasonably include Section 7 activities.

The NLRB also didn’t like GM’s admonition that its employees should “[t]hink carefully about ‘friending’ co-workers”, since that could discourage communications among co-workers. Ditto for a provision that urged employees to check with company officials if the employees had any doubt about whether particular information should be posted. It’s long been an NLRB no-no to require employees to get company permission before they can engage in Section 7 activities.

The McKesson Corporation’s social media policies instructed employees to adopt a “warm”, “friendly” and “professional” tone, and not to “pick fights”. All nice thoughts, maybe, but all illegal, according to the NLRB. McKesson was concerned that, absent a warm, friendly, professional toe, online discussions “could become heated or controversial”. Since discussions of working conditions, unionism and similar matters – all obviously Section 7 activities – could easily become “heated or controversial”, the NLRB figured that employees could “reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.” 

The policies adopted by Clearwater Paper Company suffered several of the problems described above. Employees were told not to reveal “confidential”, “proprietary” or “material non-public information”, terms which the NLRB concluded could include communications permitted by Section 7. The NLRB gave similarly short shrift to a provision forbidding employees from opining about “the workplace, work satisfaction or dissatisfaction, wages hours or work conditions”. No surprise there. Likewise to a provision warning employees to “avoid harming the image and integrity of the company” – overbroad, said the NLRB.

The NLRB reviewed social media policies from several more companies – you can review the NLRB’s complete memo here – but you should get the point by now: drafting a legal (and enforceable) policy governing your employees’ use of social media is a complicated process requiring awareness or and sensitivity to a wide range of factors. Even seemingly innocuous and unobjectionable provisions can turn out to be quite the opposite.

The NLRB was not totally dismissive of all the various policies. Clearwater, for example, prohibited online “harassment, bullying, discrimination, or retaliation” between co-workers online if such conduct would not be permissible in the workplace, even if the online conduct were done “after hours, from home and on home computers”.  According to the NLRB, this prohibition is OK because it applies only to plainly egregious content.

The NLRB also gave the thumbs up to Target’s admonition that employees should “[b]e suspicious if asked to ignore identification procedures”.  That simply encouraged vigilance without threatening disciplinary action for engaging in Section 7 activities. Similarly, the NLRB approved a provision in McKesson’s policy reminding employees that statements made in the online world have consequences and that employees should exercise personal responsibility on social media. The NLRB didn’t see such reminders as restricting speech in the least.

And the NLRB seemed OK with policies that are narrowly tailored to protect the company’s right to speak for itself. So, for example, an employer can require employees to get prior authorization before posting a message in the employer’s name or if the message can be reasonably attributed to the employer.   And an employer can require an employee to expressly state that the employee’s messages are the employee’s own and do not represent the employer’s positions, strategies or opinions.

Still, the NLRB’s overall approach is clearly slanted toward protecting the rights of employees. Indeed, in several of the cases described in the NLRB’s most recent memo, the agency disapproved of seemingly routine, boilerplate “savings clauses” that simply said the social media policy would be administered in compliance with all laws and regulations. The purpose of such clauses is normally to underscore the company’s good faith intent to abide by the law. The idea is that, if any other provision of the policy might be thought improperly ambiguous or overbroad, the “savings clause” will establish conclusively that the policy is to be interpreted as necessary to make it legal. 

According to the NLRB, though, such boilerplate provisions will not ordinarily save a company’s social media policy where that policy contains the types of overbroad provisions described above, i.e., provisions that might reasonably be seen as chilling employees’ exercise of the Section 7 rights.

So here are just a few takeaways drawn from the recurring themes we saw through these cases:

• Content-based restrictions on employee speech, no matter how well-intentioned, can – and often will – step on protected speech.  Such policies need to be crafted with imagination and a clear eye to the unintended consequences of those restrictions. When you think you’ve crafted the restriction narrowly enough, think again – and then add limiting language and clarifying examples.
• If a restriction on employee speech fails, a requirement that employees report when others violate that restriction will fail as well.
• Suggesting that employees aspire to beneficial use of social media may be OK, particularly if that aspiration includes no threat of punishment. 
• You cannot require employees to get pre-approval for social media messages posted in the employee’s own name, but you can require them to get such pre-approval for – or refrain entirely from engaging in – speech that purports to be on behalf of the company.
• A generalized savings clause is nothing more than a lazy shortcut that won’t actually help you.  

But the main takeaway is: Drafting a company’s social media policy is a surprisingly difficult task, but a necessary one nonetheless. There are pitfalls galore, even for those with the best of intentions. Before wading into the deep weeds of the drafting process, a company wishing to adopt a social media policy – or revise an existing policy – should seriously consider seeking expert assistance. There are myriad subtleties and conflicting considerations that must be weighed and balanced and, as we have seen in the NLRB memo, even the biggest corporations came up short.

Some answers may be found in longstanding legal tests and principles of Section 7 of the National Labor Relations Act (NLRA). How do those tests and principles get applied to new situations? That’s where the NLRB’s decisions, and the acting GC’s memo, come in handy.  

Historically, the NLRA protects employees’ speech if the employee is engaged in (a) protected activity or (b) concerted activity, as long as the activity is (c) not “opprobrious”. The 14 cases shed light on what the NLRA means by each term and provide some examples of what can be disciplined and what cannot.

Protected Activity

Section 7 of the NLRA exists primarily to assure employees some manner of communicating concerns about the conditions of their employment. Ordinarily, an employee can successfully challenge disciplinary action arising from his or her expressive activities if those activities were “protected” under the accepted interpretations of the act. Speech implicating or relating to terms and conditions of employment is generally “protected”. For example, if an employee chats with coworkers or speaks publicly in preparation for a discussion with employers relating to the job, that is likely to be “protected”.

The NLRA has said that what constitutes “protected activity” does not change if the employee’s comments are communicated via the Internet. Protests of supervisory actions in a Facebook post or Tweet? Pictures posted on-line of oneself carrying a picket sign in front of the company logo or wearing shirt with the company logo during a protest? Both activities would probably irritate your employer – but both are protected.

Concerted Activity

Concerted activity exists when an employee acts with or on the authority of other employees and not solely by and on behalf of himself/herself – think one employee trying to rally co-workers into group action. It could also include an individual employee bringing group complaints to management’s attention, but only if that employee’s statements are a legitimate outgrowth of a group’s complaints.

The application of “concerted activity” in the context of social media is the area that may require the closest review in practice. Is that lone Tweet an idle complaint (unprotected because it is not “concerted" in nature) or is it the first attempt to gather other workers sharing similar concerns (and therefore protected)? Is activity “concerted” per se if others comment on your Facebook post? (Spoiler alert: not always) It’s very contextual and fact-specific.

Thankfully, the NLRA’s 14 cases offer plenty to chew on. For example, the following qualified as “concerted activity”:

• An employee posting a complaint to Facebook after conversations with others about the issue or after another employee has specifically requested that management be contacted;
• Four workers posting concerns and anecdotes relating to a fifth worker’s complaints in advance of a discussion with supervisors;
• An employee’s post expressing the sentiment of a group after the employee tells several employees of the plan to take action and then following through with that action.

The following were determined not to involve “concerted activity”:

• A newspaper reporter airing personal grievances and criticizing other media and companies on a work-related Twitter account;
• An employee posting a complaint when (a) the topic never previously discussed with coworkers, and (b) no coworkers responded to the post, and (c) there were no employee meetings or any attempt to initiate group action.
• A complaining Facebook post complaining of an individual where the only responsive comments are all in the nature of “hang in there”.

“Opprobrious” comments

Of course, there are limits to what an employee can say and how he or she can say it, even when engaged in protected and/or concerted activity.

One test the NLRB applies (dubbed the “Atlantic Steel” test) involves public outbursts by an employee against a supervisor. The test: were the employee’s statements “opprobrious”? Since “opprobrious” isn’t a word most of us hear in everyday conversation, here are some of the factors considered in that analysis: 

• The time, place and manner of the discussion. Was it in the workplace, during work hours, in a manner that does or is likely to interrupt the work of other employees? If so, the employer is more likely to be permitted to penalize it. Of course, the development of social media has complicated this consideration. While many people use social media at work, most social media commenting use still occurs on private time – but even comments posted on any employee’s own time can still create a negative buzz in the office or among customers or competitors. 

(Blogger observation: It’s fair to assume – and I think this is important – that employers still have significant leeway in determining what an employee can and cannot say in a Twitter feed or blog page or on the employer’s Facebook page. On the other hand, the employer's ability to discipline an employee for statements made on a personal account appears to be limited. But one thing that seems to be unique to the media world is the extent to which individual social media accounts aren’t really individual. A recent on-line discussion focused on the extent to which some journalists are “branding” themselves. By doing so, aren’t media figures – journalists, radio hosts, personalities, etc. – also holding themselves out as representatives of the media companies (and their brands) for which they work?  Something for our core broadcast, print and Internet clients to chew on . . .)

• The subject matter of the discussion. Is it directly related to the “protected” activity (see above)?
• Was the protected concerted activity provoked by unfair labor practices?  If so, this greatly favors the employee. 
• Finally, what is the nature of the outburst?  This is the one that often gets the employee in the most trouble, especially in the relatively unedited, uncensored, stream-of- consciousness social media world. Based on the NLRB’s review of cases, we know that simply swearing is not enough to put someone on the wrong side of this line, nor is name calling. “Liking” someone’s egregious comment probably won’t do it either. In fact, at this point, verbal or physical threats are the only clear examples of opprobrious conduct that can be disciplined.

Another NLRB test (this one’s called the “Jefferson” test) applies when an employee makes disparaging comments about an employer or product to third parties. In such cases, the employee is protected if the communication involves an ongoing labor dispute and is not excessively disloyal, reckless or maliciously untrue.

Another Look at Employment Policies

I have previously suggested that employers address issues relating to use of social media in their company handbooks and policies specific. I still think that’s a good idea, especially for media companies that are actively using (or trying to use) social media to engage with listeners, readers or viewers, promote programming, events and contests, or simply distribute information through new channels. But these NLRB decisions show that company policies along these lines must be drawn precisely.  

What does that mean? According to the NLRB, policies cannot create a “chilling effect” on employees’ speech by imposing rules that:

• explicitly restrict protected activities;
• could cause employees reasonably to believe their protected activities would be limited;
• is promulgated in response to protected union activities.

From the NLRB, some examples of unduly restrictive provisions:

• A prohibition on posting pictures in any media (this is overbroad because it would prohibit employees from showing pictures of protected activities);
• Requiring “respectful and courteous communications”, or prohibiting “sensitive”, “embarrassing”, “harassing”, “inappropriate” or even “defamatory” statements or discussions;
• Prohibiting the posting of private or confidential information without defining those terms (this could be construed as preventing free discussion of wages and other terms and conditions of employment) or the posting of information identifying the employer in personal profiles. 

And some examples of restrictive provisions that are permissible:

• A narrowly drawn and sufficiently specific provision prohibiting employees from pressuring coworkers to become Facebook “friends”, if it is created with the goal of  preventing harassing conduct;
• Limiting who can speak on behalf of the company, especially when further clarified with references to “crisis situations” and “timely and professional” communications.

So what are the new lessons to be learned here? My recommendations from 18 months ago are still valid. However, the recommendation that you “protect your company’s brand or image and relationships” changes somewhat. More than ever, words matter – both the words that employees use and the words you put in your social media policies or employee handbooks. You definitely need to consult an attorney if you’re going to revisit and rewrite your policies or if you’re thinking about taking action against an outspoken employee.

The answer clearly has to be “something”. “How much” depends on several factors, including your type of business, your desired business environment, and whether you actively employ social networking as part of your business development and operations.  

At an unrealistic extreme, of course, you could try to ban social media use at work altogether – if you really relish creating considerable disgruntlement on the part of your staff while undertaking herculean (and likely impossible) enforcement efforts. 

A more realistic approach is to promote and enforce responsible use.  That’s where we come in. 

If you don’t have strong policies relating to social media as part of your employee code of conduct or employee handbook, you’re opening yourself up to potential liability from a wide variety of possible scenarios. We can help prepare policies governing your employees’ use of social media as it affects, or could affect, your business. 

Such policies can take many forms. They can be additions to existing employee handbooks or codes of conduct. Alternatively, they can comprise an entirely new stand-alone set of supplemental rules specifically applicable to social media use.

However you choose to impose them, a primary goal of such rules is to put you in a position to effectively punish violations through various measures – up to and including termination of the employee in extreme circumstances.  But while enforcement is a key element, it is important to recognize that social media are a part of the current cultural landscape, in and out of the office. As a result, the tone, content and prohibitions of this code of conduct can influence not only your employees’ views of you, but also the world’s view of your business.  So even though, as an employer, you have every right to tell your employees that use of social media on company time is verboten, do you really need, or want, to be that extreme? After all, a happy employee is a productive employee, right? While loss of productivity is a key concern, a quick Facebook break between projects can often be more helpful than harmful. Shoot, I’ve checked my Facebook page and updated my status twice since I started this article . . . .

But quick breaks become long breaks and long breaks become complete time-sucks before you know it. How can you regulate such use to prevent the occasional trickle from becoming a flood?

Or suppose that, during one of those breaks, an employee uses a company computer to post something somewhere which exposes you to legal liability – defamation, maybe, or copyright/trademark infringement. Worse yet, that employee is – or at least seems to be – speaking for the company because you told him or her to do so as a means of promoting your company, its products or its services. Before you know it, you’re being sued. 

While it’s impossible to protect against every imaginable problem, a good policy will be designed to:

Define the allowable use of social media on company time or from company equipment. To what extent, if any, is it allowed? If your business is actively using social media to promote itself, who is allowed to speak for the company through these media, who is overseeing those people, and what are the prescribed processes? How do you respond to requests for information received through social media? What procedures are in place to vet official company statements? 

Minimize the likelihood that employee statements are imputed to the company.   Due to the prevalence of social media, Internet postings now have the real world impact of a face-to-face statement.  Even if an employee is not officially speaking for the company, he or she may be identifiable as a company employee and that could cause big problems for you in several areas, including:

• Harassment, sexual or otherwise, (a) of one employee by another, or worse yet, (b) of a subordinate by a supervisor. Remember – innocent banter can turn into real harassment pretty quickly, especially in the two-dimensional/written word world of the Internet, where an effective Sarcasm Detection Filter has still not been developed. 
• Liability for unauthorized disclosure of trade secrets, confidential or other proprietary information.
• Defamation, invasion of privacy or other reputational torts.
• Copyright or Trademark Infringement. 
• Violations of the FTC's new guidelines concerning testimonials.

Protect your company’s brand or image and relationships with affiliates, clients and adversaries against harm generated through employee statements on the web. At the very least, you need a general “good judgment provision”. But you may want, or need, to go further, reminding employees that, when they speak publicly, they should not do so in a way that disparages your company, its trademarks or brand names (by, e.g., publicly venting internal problems or frustrations).  You may also want to encourage them to keep their personal politics, religious views, and other proclivities or interests out of the online workplace, just as they do in the physical workspace (especially those photos you or friends have posted to Facebook).  Ditto for statements about customers, clients competitors, and the like. (Which reminds us – Employees should also notify superiors if they see disparaging statements about the company, whether of internal or external origin.)

Remind your employees that their use of company equipment comes with a diminished expectation of privacy.  You have the right to review every piece of information that travels across your computer system. You don’t need their permission to do it.  

Both apply to current employees and explicitly survive termination of the employee-employer relationship, especially with regard to disparaging or damaging statements (which may require a social media-specific confidentiality provision in your separation agreements). 

Sensitize employees to the problems which can arise from providing on-line recommendations for current or former coworkers in, e.g., their LinkedIn profiles. Employees need to realize that, even when such comments amount to just a quick line or two, such shout-outs can be deemed formal statements. Does that carry the weight of a formal letter of recommendation? Probably not. Could it carry the imprimatur of an official company statement? Perhaps. The temptation to make a negative statement about a former employee should definitely be resisted, as it can lead to allegations of wrongful termination or intentional interference with prospective business contracts (not to mention defamation).

Guide your hiring policies and procedures. Companies increasingly mine the Internet for information about potential hires and their character. It can be very useful, but it can also expose you to lawsuits if it can be shown that you used social media to discriminate against a particular person on a “protected class” basis, such as race, age, religion, sexual orientation, etc. We can show you how to create a system for reviewing social media that allows you to maximize your knowledge but minimize your liability.

Again, these are just some of the major issues you’re facing in this brave new world. There are many ways to attack them. We’re happy to work with you in planning and implementing that attack. Apart from drafting or redrafting employee handbooks or codes of conduct, we can help create an enforcement plan and supplement your efforts with in-house seminars or Internet-based webinars to explain to employees and bosses alike the ways in which social media, even unintentionally, can endanger your business.

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