Monday, January 30, 2012

Trying to make sense of the NLRB’s lastest social media missive? Good luck!

I’ve now had a few days to digest the NLRB’s latest foray into regulating social media in the workplace. I can sum up the NLRB’s report in three words: What a mess.

In a mere 35 pages, the NLRB appears to have ripped the guts out of the ability of employers to regulate any kind of online communications between employees. The NLRB found the following facially neutral, boilerplate policies to be unlawful restraints of employees’ rights to engage in protected concerted activities:

  • A provision in a social media policy which provided that employees should generally avoid identifying themselves as the Employer’s employees unless discussing terms and conditions of employment in an appropriate manner.
  • Work rules that simply prohibited “disrespectful conduct” and “inappropriate conversations.”
  • A social media policy that prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with its mission or unprofessional/inappropriate communication regarding members of its community.
  • A communications systems policy that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.
  • A communications systems policy that prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department.
  • A communications systems policy which required that social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments.
  • A communications systems policy which required that employees state as part of posts on social media sites that their opinions are their own and not their employer’s.
  • A social media policy that prohibited discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites. 
Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

What policy did the NLRB conclude was lawful? A policy that limited its reach to social media posts that were “vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

What are the four takeaways for employers from this fiasco?

  1. I’m not sure anyone at the NLRB actually uses social media. If they had any real-world knowledge about the topic on which they are opining, the report would read a whole lot differently.
  2. If these boilerplate, facially neutral, communications policies cannot withstand scrutiny, I would venture to bet that 99% of all employers in this country have policies that the NLRB would strike down if challenged. 
  3. If communications that would otherwise violate Title VII are the only types of workplace communications that employees can lawfully regulate, businesses might have to concede that they are very limited in their ability to regulate employees’ online conversations (at least until federal courts begin to weigh in on these issues and rein in the NLRB).
  4. Businesses that try to implement a workplace social media policy, or discipline employees for their online activities, without first consulting with counsel are asking for trouble with the NLRB.