Thursday, May 15, 2008

Do your policies cover electronic message boards

The National Law Journal reports that "message boards in the workplace could be a troublesome new source of liability for employers." Many companies have policies that cover the use of traditional bulletin boards. What happens, however, if an employee posts on a company-owned message board that he wants to start a union? Can the company lawfully take action against that employee? What other liability risks do online message boards pose for employers?

DynCorp Inc. v. NLRB sets the standard for employer regulation of bulletin board use in the Sixth Circuit. Like many companies, DynCorp had a bulletin board in its employee cafeteria. Shortly after a union organizing campaign began, an employee posted a pro-union flyer on the bulletin board. A manager removed the flyer and threatened to discipline the employee who posted it. Shortly thereafter, the company designated the bulletin board "For DynCorp Business Use Only." DynCorp unsuccessfully argued that the bulletin board was for company use only and that the Company had consistently removed employee postings on the bulletin board in the past. The Court cited examples of other non-business related postings remaining on the bulletin board. Moreover, no employee had ever been disciplined, or even warned, for posting non-business related materials. Regardless of any policy, the employer's lack of consistency created a practice of allowing non-business related postings, and it was therefore unlawful to remove the pro-Union posting and threaten the employee.

As DynCorp illustrates, consistency is key. If a company want to limit online message boards to discussions of company business only, it must not only have a clear policy stating so, but it also must actively police the message board to prevent violations of the policy. A company cannot turn a blind eye to all sorts of non-troublesome non-business threads, but delete the first thread the pops up talking about a labor union. That selective enforcement is asking for trouble with the NLRB.

Liability risks do not end with the NLRA. Online message boards also present risks from employees who use them as a means to harass or defame a coworker, or post trade secrets and other sensitive confidential information. If a company is going to maintain an online message board, it should be incorporated into sexual harassment policies, technology use polices, and confidential information policies, so that employees understand that online malfeasance will not be treated any differently than any other workplace misconduct.

Of course, policing a message board is much more difficult, time consuming, and expensive than the traditional cork board hanging in a lunch room. That difficulty makes me wonder whether companies are just better off not having employer sponsored message boards in the first place.