In September, I spoke to the Johnston County North Carolina Human Resources Association about the National Labor Relations Board (NLRB) and its particularly active interest in employer polices regarding social media.
For those of us living and working in a Right-to-Work state like North Carolina (meaning that employees are not obligated to become members of a union organized in their workplace) where union activity may not be an everyday occurrence, the NLRB is not a familiar regulating administrative body. First and foremost, it is important for business owners to understand that, in general, the NLRB has the authority to regulate private-sector employers—with or without a union—with respect to matters directly or indirectly involving their employees’ right to form a union or discuss the formation of a union.
What does this have to do with an employer’s social media policy you ask? As you have likely read in the news, the NLRB recently issued several decisions citing employers for having overly-broad social media policies, which the NLRB feels restricted employees’ rights to discuss their working conditions—a right protected by federal law and which the NLRB feels unreasonably restricts employees’ ability to discuss the potential formation of a union.
Given these recent NLRB decisions, many employers felt that they were now prohibited from having a social media policy. This just isn’t accurate. Social media policies are indeed lawful; however, because of the recent NLRB decisions, the details of what an employer could regulate within its policy were anything, but clear.
So, what exactly can an employer regulate?
On May 30, 2012, the NLRB issued an Operations Management Memo that provided a summary of its recent decisions regarding social media policies, and, most importantly, at the end of the Memo, the NLRB provided a sample policy that it deemed lawful. A copy of the Operations Management Memo, dated May 30, 2012, is located on the NLRB website at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies). Although the NLRB sample policy does not clarify all substantive matters, it does provide some additional and helpful guidance for employers:
- Employers can continue to prohibit employees from posting information regarding an employer’s private, confidential information and trade secrets as well as confidential internal communications, such as business reports, policies and procedures.
- Employers can prohibit their employees from representing in a post that they speak on behalf of the company. Employees can only express their own personal opinions
- Employers can require that employees be respectful, fair and courteous and to avoid posting statements that “could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.”
- Employers can require that employees be honest and accurate in their posts, to correct any known mistakes quickly, and never to post any information or rumors that the employee knows to be false about the company, any associates, members, customers, suppliers or competitors.
- Employers can prohibit employees from posting comments that constitute “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct”.
- Employers can prohibit employees from using social media while at work or with employer-owned equipment.
For more information on this topic, please feel free to contact me at msoule@soulelawfirm.com.