October 07, 2012
Intellectual Property, Internet & E-Commerce, Labor & Employment Alerts

Does Your Social Media Policy Pass NLRB Muster?
by Cyrus Wadia

The National Labor Relations Board has issued a series of significant decisions regarding corporate social media policies in the last year. Taken together, they provide a series of guidelines regarding what employers cannot say regarding employees’ social media use under the National Labor Relations Act (NLRA).  
The general rule used by the NLRB is that employers cannot maintain work rules that “would reasonably tend to chill employees in the exercise of their rights: “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 such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment…” In interpreting these rules, the NLRB views them as protecting employee collective-bargaining related rights whether or not employees have sought a collective bargaining agreement. In applying this rule to a series of social media policies, several general guidelines are apparent: 

  • Social media policies should include a general statement that the social media policy does not apply to communications that are protected under the NLRA.
  • Social media policies should not broadly prohibit statements that damage or defame the company or any person’s reputation, but rather be specific as to prohibited statements (and make sure those rules do not target protected speech).
  • A social media policy does not have to applied in order to violate the NLRA – merely stating something in the policy that would appear to prohibit protected speech is unlawful.
  • While including a “savings clause “(i.e., instructing the employee to ask their employer for further guidance) in the social media policy may be a good idea, it will not save an overbroad rule.
  • Social media policies should not broadly limit any employee contact with the media, as that may chill protected speech.
  • Social media policies should not have a blanket requirement that employees maintain confidentiality in company investigations, but rather a targeted approach that weighs the employer’s need for confidentiality against the employee’s right to protected speech.
  • Social media policies should not prohibit social media use at work generally, because that prohibition could exclude time spent at work on breaks, lunch or before and after work (during which times such speech would be protected).
  • Social media policies should not prohibit contact with governmental agencies generally, but rather clarify that employees have rights to personal privacy and a right to communicate with government agencies with respect to their own matters.

The lesson to be learned from the NLRB’s increasing action in this area is that social media policies should be narrow and targeted to the real needs of the company rather than blanket overbroad statements. Cooper’s Intellectual Property Group can assist you in the creation, maintenance and enforcement of social media policies. For further information, please contact Cyrus Wadia.

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