Federal agencies are not shy about enforcing alleged violations of their policies after the fact. From these enforcement actions, lawyers are supposed interpret the results to advise their clients on how to avoid the same fate.
In the past, the NLRB even summarized some of the cases for us in its second report on social media in the workplace. This week, the NLRB went a step further and actually told us what we should and should not include in social media policies. You can read the NLRB’s third report issued on May 30, 2012, here.
According to the report, companies need to consider whether their social media policies “would reasonably be construed to chill” the employees’ rights to discuss with each other their working conditions.
What not to include
The NLRB believes this broad right, applicable to union and non-union employees alike, makes certain run of the mill social media provisions overly broad such as a policy that forbids employs from sharing ”confidential guest, team member or company information.”
The NLRB also frowns upon policies that require the employees to only include information that is ”completely accurate and not misleading and that they do not reveal non-public information on any public site.”
You also should not include language in your policy that prohibits employees from posting “offensive, demeaning, abusive or inappropriate remarks.”
Warnings to “think carefully” before connecting with colleagues is overly broad.
To my chagrin, the NLRB even frowned upon policies that restricted employees from discussing the company’s legal matters.
All of these no-no’s could be construed to prevent employees from discussing the terms and conditions of their employment with each other which is unlawful.
So, what can I have in a policy?
Here are some of the acceptable examples:
“You are solely responsible for what you post online.”
“Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance,…may result in disciplinary action up to and including termination.”
What we use
For informational purposes only and not specific legal advice that you can rely upon or that establishes a lawyer-client relationship because each situation is unique (aren’t lawyers fun people to hang out with?), here is the language we usually start with:
You are responsible for any information you post online. Any online behavior, including that done during non-work hours, that unnecessarily casts the Company in a negative light or that adversely impacts the Company environment of teamwork will ultimately be your responsibility and may be the basis for discipline by the Company. Some examples include, but are not limited to, any vulgar, obscene or disparaging comments about the Company, its employees or customers that do not address the terms and conditions of your employment.
Hopefully, this starting point passes muster and success means it will never be tested.
[Updated 6-4-2012] Is the NLRB going too far?
Not everyone agrees with the NLRB’s position suggesting the NLRB is addressing conduct outside of its purview. Looper Reed employment law attorney and The Employer Handbook creator Michael Kelsheimer says, “after chastising and punishing businesses for their social media policies over the last several years, the NLRB has finally provided some guidance to businesses on what is acceptable for a social media policy. Unfortunately, the NLRB’s guidance severely cuts into an employer’s ability to stop conduct that really is not protected by the NLRA and could violate other laws such as Title VII.”