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NLRB Decision Impacts Employer Social Media Policies

Posted on Mon, May 19, 2014 @ 10:03 AM

by Jack B. HarrisonJack B. Harrison

On April 22, 2014, an administrative law judge for the National Labor Relations Board (“NLRB”) held that certain provisions of the Kroger Co. of Michigan’s online communication policy was unlawfully broad because specific provisions of the policy could reasonably be interpreted as infringing upon employees rights under the National Labor Relations Act.  Specifically, the decision held that the provisions at issue could be interpreted as unlawful limitations on employees’ rights under Section 7 of the Act to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.”

The four specific policy provisions that were of concern to the Board in this decision follow:

  1. If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.”

  2. You must comply with copyright, fair use and financial disclosure laws, and you must not use without permission or compromise in any way the Company’s intellectual property assets (like copyrights, trademarks, patents or trade secrets –including, for example, Kroger or banner logos, or trade names of products, or non-public information about the Company’s business processes, customers or vendors).

  3.  Confidential and proprietary information should not be discussed in any public forum unless it has been publicly reported by the Company. Confidential and proprietary information includes but is not limited to: financial results, new store designs, current or future merchandising initiatives, and planned technology uses or applications. Do not comment on rumors, speculation or personnel matters.

  4. When online, do not engage in behavior that would be inappropriate at work—including, but not limited to, disparagement of the Company’s (or competitors’) products, services, executive leadership, employees, strategy and business prospects.

In each instance, the Board concluded that the provisions were unlawfully broad, in that a broad application of these restrictions would, in the Board’s view, necessarily implicate an employee’s legitimate Section 7 activity.  For example, the Board found unlawful the following sentence included in these policies: “Do not comment on rumors, speculation or personnel matters.”  The Board’s reasoning for finding this statement unlawful was that a “rule prohibiting employees from commenting on “personnel matters” strikes at the heart of Section 7 activity,” in that this rule could arguably lead employees to believe that they were prohibited from discussing conditions of employment and wages with union representatives, a right protected by Section 7.

The important learning for employers from this decision is that they must be cautious in the language used in Social Media policies to insure that they do not potentially reach activity protected by the National Labor Relations Act.  In drafting these policies, prudent employers should adhere closely to the language provided in the Board’s Social Media Policy Guidance Memoranda, keeping in mind that the Board has made it clear that it will interpret even the language contained in the sample policies in its own Memoranda very narrowly.

With the dramatic increase in the use of social media in the workplace and by employees outside the workplace, it is important that employers have policies in place that both protect their interests and can withstand Board scrutiny.  Additionally, as the law in this area is rapidly changing, employers must constantly review their social media policies to insure that they are consistent with the current state of the law.

Tags: Social Media Policy, NLRB

NLRB Guidance on Social Media Policies—Look to Wal-Mart

Posted on Wed, Nov 14, 2012 @ 09:49 AM

Robert J. Hollingsworthby Robert J. Hollingsworth

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.

Tags: Social Media Policy, Protected Concerted Activity, NLRB, National Labor Relations Board

Creating Effective Policies to Regulate Social Media

Posted on Tue, May 01, 2012 @ 09:28 AM

Jack B. Harrisonby Jack B. Harrison

Use of social media increasingly exposes employers to potential liability for what their employees may do or say in various social media forums or for the manner in which an employee uses various emerging technologies.  This development makes it important for employers to develop, implement, and enforce clear social media policies in the workplace in order to avoid potential litigation and liability.

How can an employer face litigation and potential liability based on what an employee may do on a social media website or based on an employee’s use of some emerging technology?   

Here are just a few examples:

  • Federal Equal Employment Law (Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act), as well as similar state laws, protect against unlawful employment practices in the workplace.   For example, where an employer knows its employees are being sexually harassed through social media and takes no action, that employer arguably violates the law.
  • The Fair Credit Reporting Act prohibits an employer from obtaining and using some types of background information without first obtaining authorization from the employee or prospective employee.  Where, for example, a supervisor uses a mobile phone application to check an applicant’s credit record and then refuses to hire her based on what he learns, may subject the company to liability if authorization has not been provided or if the proper notices have not been given.
  • The Health Insurance Portability and Accountability Act protects against the unauthorized disclosure of personal health information. But imagine a situation where hospital employees post details of patient medical care to their Facebook page in describing their day.  Such postings could expose the employer to HIPAA liability.
  • The Uniform Trade Secrets Act, which has been adopted in some form by the vast majority of states, which protects against the disclosure, misappropriation and use of a company’s information, where the economic value derives from the fact that is not generally known to and not readily ascertainable by proper means and the owner takes reasonable steps to protect its secrecy. An employee who discloses his former employer’s trade secrets on his new employer’s website or on its blog could subject the new employer to liability.

These examples are only a few of the various theories under which an employer could be found liable for an employee’s use of social media.

An effective social media policy should:

  • Fit within the strategic vision of how the employer uses electronic media in its business;
  • Be consistent with the employer's policies on: discrimination, harassment, retaliation, ethical practices, intellectual property, trade secrets, information technology, and technology/electronic resources use policies;
  • Be clear about who the policy applies to and specifically identify the media to which it refers, including social networks, blogs, YouTube, Twitter, text messages, bulletin boards and chat rooms;
  • Contain clear statements about limitations on expectations of privacy, including the employer’s ownership of the computer, the employer’s right to monitor and access social media during and after employment, and the existence of an “audit trail” as to activity conducted on a company computer;

Regarding employer-sponsored social media:

    • Require employees to take responsibility for what they post, to create excitement about the employer’s business and to add value; to be respectful and use good judgment; to complain to human resources about any misuse of social media.
    • Prohibit employees from disclosing company confidential and trade secret information; posting personal and privileged information like attorney-client and doctor-patient communications; soliciting for non-company activities; slacking; “friending” subordinates on Facebook or similar sites; posting anonymously or pseudonymously; and violating other company policies through the use of social media.

Regarding non-employer-sponsored social media:

    • Require employees to comply with all company policies; to post a disclaimer for any comments relating to the company; to be truthful and respectful; to resolve human resources complaints internally; to contact HR or a manager for needed clarification.
    • Prohibit employees from disparaging the company, its employees, and the competition; from using the company’s graphics or photos of the company; from posting anonymously or pseudonymously about the company; and from violating company-mandated blackouts.

Finally, the policy must state clear consequences for violations of the policy and be implemented in a manner to insure that managers, information technology staff, and other employees are trained to understand and follow them.  Additionally, an employer will have to monitor, enforce and re-evaluate the policy as necessary.

Tags: Social Media Policy, Social Media, Fair Credit Reporting Act, Health Insurance Portability and Accountability Ac, Uniform Trade Secrets Act, Employer-Sponsored Social Media