As the use of social media, including Facebook, Twitter, Instagram and other social media outlets continues to grow exponentially, employers are increasingly challenged to draft social media policies that do not violate Section 7 of the National Labor Relations Act (“NLRA” or “the Act”), which permits employees to come together to discuss work-related issues for the purposes of collective bargaining or other mutual aid or protection, (“Protected Concerted Activity”) and the National Labor Relations Board (“NLRB”) has inherently recognized that use of social media has replaced such employee discussions that traditionally occurred “around the water cooler”. Now, social media has become “a”(if not “the”) primary method by which employees engage in “Protected Concerted Activity”.

As a result, the NLRB issued a series of guidelines for what employer social media policies should contain, and the NLRB has also issued multiple decisions that make clear that employer social media policies are a prime target of the NLRB, which intends to intensely scrutinize employer social media policies for compliance with the guidelines and to assure that the policies are not overly broad, ambiguous, confusing or conflicting. Many of the NLRB’s decisions have been appealed to and upheld by the federal courts. Interestingly, employers need to be aware that the protections of the ACT apply to union, as well as non-union, employees. Further, that the ACT was passed in 1935, when social media was non-existent, makes uncertain the legality of even those good faith and well-intentioned attempts by employers to comply with the requirements of the ACT because it is difficult for the law and the Courts to keep pace with the technological changes impacting social media. While the ACT itself remainsstagnant, the social media avenues by which employees are exercising their rights to engage in Protected Concerted Activity are ever evolving. Employers are often more often than not left to speculate if their social media policies will withstand scrutiny by the NLRB and the Federal Courts.

Therefore, the burning question becomes, “Can an employer avoid the traps of a social media policy that the NLRB would find unlawful”? To this end, both the NLRB and the Courts have offered some guidance, and when coupled with common sense and competent legal advice, an employer’s social media policy should pass muster. But, remember, this an area of the law that is both evolving and in constant flux. Therefore, drafting a social media policy is not a “do once” and forget about it situation. Rather, the employer’s social media policy should be reviewed with counsel at least annually and updated as circumstances warrant and as the law and NLRB decisions provide further guidance. Some suggested guidelines follow:

  1. Despite that an employer’s corporate logo may have substantial value, and is the intellectual property of the business owner, any social media policy that attempts to generally limit an employee’s use of the corporate logo without the employer’s permission may well violate Section 7 of the ACT. But, on the other hand, an employer should be able to draft specific prohibitions in a manner that prevents “improper use” of the employer’s logo (such as any use in violation of the employer’s intellectual property rights) and still pass muster under Section 7 of the Act;
  2. Employers cannot generally prohibit employees from disclosing “confidential information of the employer”.On the other hand, if the term “confidential information” is carefully defined to include trade secrets and other information of the employer (such as profit margins, vendor/supplier costs) that is not otherwise publicly available and would provide a competitive advantage to anyone possessing it, then the prohibition would probably be enforceable without violating the ACT;
  3. Employers cannot generally prohibit employees from making disparaging/derogatory and/or false statements about the employer, its suppliers, vendors, customers and/or employees. Under the NLRB guidelines and case precedent, “false statements” are protected unless they are maliciously false, meaning, knowingly or recklessly false and disparaging/derogatory statements are protected if they concern the terms and conditions of employment.Therefore, the employer should tailor its social media policy to prohibit disparaging/derogatory statements that are “maliciously false” and should include a disclaimer that nothing in the social media policy is intended to or does abridge, in any fashion or manner, the right of its employees under the ACT, to discuss terms and conditions of employment (although this disclaimer cannot be expected to generally protect the employer, if specific provisions of the social media policy fail to meet the requirements of the ACT);
  4. Any restrictions on harassing or discriminatory statements in a social media policy should be clearly defined and narrowly drafted to avoid violating the Act; and
  5. Employers should seriously consider using legal counsel to help to draft or update any social media policy already in existence and should regularly revisit the policy, at least annually, to be reviewed and updated as the law continues to evolve.