Employers: Guidance to Refine Social Media Policies, Part 1

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Employers: Guidance to Refine Social Media Policies, Part 1

Employers, how often is your company’s Employee Handbook updated?  How often are your employee conduct and social media policies reviewed for compliance with the law?  At the very least, hopefully these policies and documents are reviewed and updated annually.  Once a year, however, may no longer be frequent enough.  The National Labor Relations Board (NLRB) continues to issue decisions and to provide guidance that employers should review and understand to reduce the risk of being caught with unlawful policies.

Is the NLRB Important To My Business?

YES, absolutely – even if your company does not have a union.  By now, I have written over 40 posts here at Maximize Social Business, and a large number of those have referenced the NLRB.  This is so because a few years ago the NLRB, somewhat surprisingly, has been at the forefront and the most active government agency to focus on employee conduct and social media in the workplace.  This is true whether an employer is unionized or union-free.   For a more complete post regarding, and for a deeper understanding of, the NLRB and the National Labor Relations Act (NLRA), please review this post titled “Employers: Don’t Ignore These Two Acronyms For Social Media Policy Compliance“.

A Recent Employer-Friendly NLRB Decision

Typically, the NLRB, particularly with its current membership, has issued decisions adverse to employers by finding that seemingly reasonable actions and policies are, in the NLRB’s opinion, violations of the NLRA.  For example, see the Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez case where the NLRB said the employer violated the law when it terminated an employee for posting the following (among other things) on social media:  “Bob is such a NASTY MOTHER F____R don’t know how to talk to people!!!!!! F__k his mother and his entire f____ing family!!!!”

Surprisingly, however, in April 2015, the NLRB affirmed a decision that found an employer’s social media policy was lawful, contrary to the arguments made by the NLRB’s General Counsel.  In an NLRB case involving Landry’s Inc and its subsidiary Bubba Gump Shrimp Co. Restaurants, Inc., an Administrative Law Judge evaluated whether the following portion of the company’s social media policy violated the NLRA:

“While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business.  This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.”

Lately, the NLRB has routinely struck down such policies because they tend to stifle employee rights to discuss workplace issues.  In this case, however, the Administrative Law Judge found that the policy was lawful since it focused on “morale issues,” and “civility”, and did not focus on the content of employee posts to social media.  As the Judge wrote:  “[i]t is not the job-related subject matter of the postings that are of concern to the [company], but rather the manner in which the subject matter is articulated and debated among the employees.”  The Judge continued by noting that “[f]orethought and civility in the exercise of protected concerted or union activity are not mutually exclusive concepts.”  And, the Judge summarized that under Landry’s social media policy, employees “are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the [company] or each other regarding job-related matters.”

Why This NLRB Decision Was So Unexpected

The Landry’s decision was good news for the company of 50,000 employees, and other businesses looking to refine social media policies to comply with NLRB standards.  The outcome of this case was unexpected because the NLRB has been very pro-employee and has found unlawful most company social media policies in the last several years.

For example, the NLRB found the following social media policy to be unlawful:  “Refrain from commenting on the company’s business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advance approval of your supervisor, Human Resources and Communications Departments.”

And, the following seemingly reasonable policies were also determined to violate employee rights under the NLRA:

“[You may not m]ake false or misleading representations about your credentials or your work.”

“You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy).”

“[B]e respectful to the company, other employees, customers, partners and competitors.”

“[D]on’t pick fights online.”

“Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.”

The General Counsel of the NLRB analyzed the above unlawful policies.  That analysis will be the focus of the Part 2 post here next month, where the focus will be on whether such policies stifle employee discussion about work place issues.  In the meantime, company executives, and HR professionals, should review their company’s social media and conduct policies to understand if an update is necessary.

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.  No attorney-client relationship is created via this website.

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