The phenomenal rise in the use of social media is reflected in the recent focus of the National Labor Relations Board (“NLRB”) on cases involving social media policies. As people increasingly use social media to discuss all aspects of their lives, they frequently post comments about work-related matters. These comments sometimes involve complaints about the employer, supervisors, and co-workers, often in colorful and profane language. Given the potential that a worldwide audience may view these postings, employers have become alarmed at the potential for the dissemination of confidential information or trade secrets; injury to the employer’s business reputation; threats, harassment or ridicule of co-workers; or invasions of privacy, just to name a few concerns. In response, many employers have adopted social media policies and in some cases have disciplined employees for violations of these rules.
From its inception in 1935, the NLRB has protected the right of workers to engage in “protected concerted activity.” This refers to the right of employees in the private sector to join together to improve their wages and working conditions, with or without a union, or to refrain from such activities. These rights may be exercised through social media.
The General Counsel of the NLRB has issued three reports on social media policies: the first on August 18, 2011, the second on January 24, 2012, and the third on May 30, 2012. For employers looking for guidance on how to write a social media policy that will pass scrutiny by the NLRB, the General Counsel’s third report is the most helpful.
While the General Counsel’s third report is not a model of consistency or clarity, it contains some helpful recommendations. First, when drafting a social media policy, employers should avoid language that is too general and might restrict “protected concerted activity”: for example, a policy that prohibits employees from disclosing confidential information. Since “confidential” information could include wages, the NLRB would consider such a policy as too broad. The General Counsel’s advice: define and give examples of “confidential” information so that employees will understand that it does not include “wages” or other matters relating to the terms or conditions of employment
The second most helpful piece of advice from the General Counsel is that he found one employer’s social media policy to fully comply with the National Labor Relations Act. The employer is Wal-Mart. The General Counsel was so favorably impressed with Wal-Mart’s revised policy that he attached the entire policy to his report.
For any employer drafting or revising its own policy, the Wal-Mart policy provides a helpful starting point. Following this policy will not absolutely guarantee that the NLRB won’t challenge some aspect of the policy in the future, but an employer adopting some version of this policy will have the comfort of knowing that its policy presently enjoys the endorsement of the General Counsel. Click here for a copy of the Wal-Mart policy.