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How to Survive Scrutiny of Social-media Policies

Karina L. Schrengohst

Karina L. Schrengohst

Does your company have a provision in its employee handbook that prohibits employees from publicly posting content on social-media sites that damages or defames your company or your employees? If you do, it is important to know how to tailor such a policy to survive the National Labor Relations Board’s scrutiny.

This is particularly important because, over the past year or so, the NLRB has taken an interest in social-media policy discipline and discharge cases.

As an increasing number of employees are using social media, many employers have found it necessary to include a section in their employee handbooks that prohibit certain electronic postings. Accompanying this growth is a rise in litigation involving such policies. Therefore, the importance of a carefully drafted social-media policy cannot be overstated.

The NLRB issued its first formal ruling on the legality of social-media policies on Sept. 7, 2012, finding language in an employee handbook that employers commonly use unlawful. Although this is the first NLRB decision addressing this issue, the topic of social media has received much attention from the NLRB and by administrative-law judges around the country. This recent decision reaffirms the board’s position that the National Labor Relations Act (NLRA) is broad enough to provide protection to employees who make comments about their employers via social media such as Facebook posts.

This decision is also consistent with the guidance the NLRB’s acting general counsel has issued in the past year or so that overly broad restrictions on negative statements about the workplace may make employees feel that they are prohibited from using social media to discuss job-related concerns such as wages, hours, and working conditions, and, therefore, such restrictions violate the NLRA.

In the recent case in question, the NLRB found Costco Wholesale Corp.’s social-media policy unlawful, in part, because it broadly prohibits electronic statements “that damage the company, defame any individual, or damage any person’s reputation or violate the policies” in its employee handbook. This language should look familiar to many employers, as it is commonly used in employee handbooks.

Specifically, the rule in Costco’s employee handbook stated that “any communication transmitted, stored, or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the company, defame any individual, or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”

The board found that Costco’s policy could be construed as prohibiting concerted communications, such as speech critical of the company’s treatment of employees or working conditions, and such restriction on Section 7 rights violates the NLRA. Section 7 of the NLRA guarantees employees, whether in a union or non-unionized work environment, the right to engage in concerted activities for the purpose of mutual aid and protection. In other words, all employees have the right to discuss the terms and conditions of their employment.

Although the board failed to articulate any criteria to assist employers in crafting social-media policies, this decision is important because it suggests that employers might avoid liability by including appropriate disclaimers in their social-media policies and restrictions on its application. As part of its reasoning, the NLRB criticized Costco’s policy for not having disclaimer language that the policy did not apply to communications protected under the NLRA. This suggests that express language excluding Section 7 communication from the scope of the policy might have survived the board’s review. And it is likely that the board will find policies without language that explicitly excludes protected activity under the NLRA unlawful.

In addition, as part of its reasoning, the board criticized Costco’s policy for not having language which restricts its application. This suggests that a policy that provides context to restrictions by giving specific examples of prohibited conduct that is not protected by the NLRA, such as the use of profane language; malicious, abusive, or unlawful statements; or unlawful harassment, would be more likely to survive NLRB scrutiny.

The takeaway from this decision is that, even in a non-unionized work environment, vague and overbroad social-media policies restricting disparaging comments about the company or its employees will be found unlawful by the NLRB. Furthermore, disciplining an employee under such a policy could potentially lead to unfair-labor-practice charges and wrongful-termination claims.

In light of this decision, and given the fact that the language at issue is commonly found in employee handbooks, employers should carefully review their social-media policies and consult with their employment counsel to ensure that their policies do not contain broad prohibitions on employee conduct and are tailored to survive NLRB scrutiny.

 

Karina L. Schrengohst, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor- and employment-law firm; (413) 586-2288; [email protected]

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