Is your employee social media policy enforceable?

by Beth A. Kahn and Timothy J. Toohey

Social media—including Facebook, Twitter, LinkedIn, and personal blogs—is everywhere in our digital world, including the workplace. Employers use social media to promote awareness of their company or brand, deal with customer feedback, and promote company objectives. Employees not only may have access to their employers’ sites but also may use their own social media accounts to post comments about their employer and workplace.  Image may be NSFW.
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Social media has undoubted benefits for both employers and employees, but it also has its dangers. Postings containing controversial or inappropriate information can easily go “viral” and harm a company’s reputation. Once released, social media postings are difficult, if not impossible, to retract. Company or personal social media accounts may be used by employees to publicize offensive or illegal conduct that can have negative consequences for a company.

Given the benefits and dangers of social media, employers have been encouraged for several years to adopt what is known as a “social media policy” to establish standards for the use of social media. Typically, a social media policy specifies what employees may post on an employer’s social media account or their own online accounts.

NLRB’s actions

Although it might seem that setting up a social media policy is relatively straightforward, policies that aren’t well thought out or were established some years ago may not be enforceable. That’s because the National Labor Relations Board (NLRB) has found that social media policies may inhibit employees’ right to engage in actions protected by the National Labor Relations Act (NLRA).

Section 7 of the NLRA gives employees the right to engage in “concerted activity” for their mutual aid or protection. The NLRB interprets “concerted activity” broadly. Protected activity includes employees’ right to discuss the terms and conditions of their employment, their pay, and safety concerns. Importantly, this section of the Act applies to all employers whether or not they are unionized. In other words, even if an employer isn’t unionized (or there is no prospect that it will be unionized), it still must not inhibit employees’ right to concerted activity.

In recent years, the NLRB has ruled that numerous employers’ social media policies are illegal because they were written or enforced in such a way that they discouraged or prohibited employees’ “concerted activity.” For example, in Triple Play Sports Bar and Grille, the Board found that an employer couldn’t fire employees for posting comments that were critical of it for making mistakes on their tax withholding, leading to the employees owing additional taxes. The Board decided that the employees’ critical Facebook postings were protected “concerted activity.”

The NLRB also decided that the employer’s social media policy, which prohibited employees from “engaging in inappropriate discussions about the company, management, and/or co-workers,” violated the NLRA. The Board found that the employer’s use of the word “inappropriate” in the policy was imprecise. Employees therefore might believe they were prohibited from discussing any subject the employer believed was “inappropriate,” including the conditions of their employment. The NLRB ordered the employer to stop using its social media policy, establish a new policy, and reinstate the fired employees to their former jobs with back pay. (For more details on the Triple Play ruling, see “Court deals blow to ability to discipline employee social media activity” in our November 23, 2015, issue.)

The Triple Play case is one of many NLRB decisions invalidating employers’ social media policies. In other cases, the Board has found that a wide range of provisions violate the NLRA’s protection of concerted activity, including provisions:

• Prohibiting employees from posting statements that “damage the company, defame any individual or damage any person’s reputation”;
• Requiring employees to be “courteous, polite and friendly to customers, vendors and suppliers [and] fellow employees” and disallowing “disrespectful [conduct] . . . or any other language which injures the image or reputation of the [employer]“;
• Prohibiting employees from posting material on social media that “violates the privacy of another”;
• Prohibiting employees from linking to the employer’s website or referring to the employer on social media without obtaining prior written permission from the company;
• Prohibiting employees from posting information on social media that is “embarrassing” to another person; and
• Prohibiting employees from posting disparaging remarks about coworkers in violation of an employee handbook rule prohibiting “insubordination” and lack of respect.

On the other hand, the NLRB has found that the following provisions don’t violate the NLRA:

• Requiring employees to post a disclaimer on social media that the views expressed are the employee’s alone and don’t reflect the views of the company;
• Requiring employees to express themselves in a “respectful manner” (prohibiting threats against coworkers or using profane language);
• Adopting a nonretaliation policy for employees who report inappropriate social media activities;
• Prohibiting discriminatory remarks, harassment, bullying, and threats;
• Prohibiting employees from disclosing trade secrets; and
• Prohibiting employees from posting content that implies or demonstrates they have engaged in illegal conduct.

Bottom line

Given the somewhat fine distinctions between acceptable and unacceptable provisions, how can you steer clear of issues with your social media policies?

1. You should be as precise as possible. The NLRB has made it clear that vague or imprecise terms such as “embarrassing,” “insubordination,” “defame,” and “inappropriate” chill employees’ right to concerted activity. When possible, you should provide examples of the type of conduct that is prohibited and link to other policies, such as a privacy policy, or specific sections of an employee handbook.
2. You shouldn’t borrow a social media policy from another company. With social media policies, one size does not fit all.
3. You should review social media policies frequently to make sure they comply with changing legal requirements, including recent NLRB decisions.
4. You should make sure your social media policy takes into account changes in social media itself. A social media policy that isn’t up to date regarding recent forms of social media has limited use or effectiveness.
5. You should train employees on your social media policy. Training should also be used to reinforce the importance of protecting against the loss of trade secrets or other proprietary information. As the NLRB has made clear, employers that attempt to take actions such as firing an employee in violation of an improperly designed social media policy may be subject to considerable adverse financial and legal consequences. Employers that are unfamiliar with this area of the law should seek professional guidance.

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Beth A. Kahn is a partner at Morris Polich & Purdy LLP, practicing in the firm’s Los Angeles Image may be NSFW.
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Timothy J. Toohey is a partner at Morris Polich & Purdy LLP, practicing in the firm’s Los Angeles office. He may be contacted at ttoohey@mpplaw.com.