Writing a social media policy that passes muster with the National Labor Relations Board (NLRB) can be an exercise in semantics. In his latest memo on the topic, NLRB Acting General Counsel Lafe Solomon on May 30 provided a detailed analysis of six social media policies he found to be in violation of labor law, and one he held up as a model.
Some labor attorneys praised the memo for providing a model policy for employers to follow. But ambiguities remain, and the differences between policy clauses found acceptable and others found problematic sometimes come down to the choice of words.
At issue is whether social media policies violate employees’ right, under Section 7 of the National Labor Relations Act (NLRA), to communicate or work together in “concerted activities” for the purpose of collective bargaining or to improve working conditions and terms of employment. Employers in both union and nonunion workplaces who terminate or discipline an employee based on a social media posting that the NLRB finds to be “protected concerted activity”—such as a Facebook conversation among employees complaining about pay—may be violating Section 7.
In August 2011 and January 2012, Solomon issued memos explaining the NLRB’s rationale in deciding cases in which employees alleged disciplinary action based on a social media posting. He also reported on cases in which the board found social media policies to be overly broad. However, he did not detail what constitutes an acceptable social media policy. The latest memo is a step forward in that regard.
“For the first time, they provided one full policy that passed muster,” says Richard Greenberg, a partner at Jackson Lewis. “The acting general counsel is putting meat on the bone, and that’s helpful to the employer community.”
The memo stresses the importance of providing examples of prohibited online activity to avoid possible misinterpretation by employees. Still, some of the comments seem contradictory.
“While the guidance is very helpful, providing more clarity on the issue and a model policy, there is still a lot of ambiguity and you could make the argument that some things held unlawful in some policies were held lawful in other policies,” Greenberg adds.
One thing is clear from reading the memo—most social media policies would not pass the NLRB test. The organizations whose policies contained unlawful provisions include Target Corp., General Motors Co., McKesson Corp., DISH Network Corp., Clearwater Paper Corp. and a non-profit, Us Helping Us.
The McKesson policy analysis exemplifies Solomon’s wordsmithing. One provision said employees “are encouraged [emphasis added] to resolve concerns about work by speaking with co-workers, supervisors, or managers … [and] to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.”
In holding that provision unlawful, Solomon wrote, “an employer may reasonably suggest [emphasis added] that employees try to work out concerns over working conditions through internal procedures. However, by telling employees that they should use internal resources rather than airing their grievances online, we found that this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.”
“This seems to be splitting hairs,” says James Walters, a partner at Fisher & Phillips. “What is the difference between ‘suggest’ and ‘encourage?’ They say the same thing to a reasonable person.”
Forget the Disclaimer
The memo said General Motors’ policy was unlawful for, among other things, warning employees not to “reveal non-public company information,” which the policy defined as including “any topic related to the financial performance of the company”; “information that has not already been disclosed by authorized persons in a public forum”; and “personal information about another employee, such as … performance, compensation or status in the company.”
“Because this explanation specifically encompasses topics related to Section 7 activities, employees would reasonably construe the policy as precluding them from discussing terms and conditions of employment among themselves or with non-employees,” Solomon asserted.
Although GM and McKesson, like many employers, added a disclaimer or “savings clause” stating that the social media policy would not be construed to interfere with employees’ rights under the NLRA or any other law, that didn’t change the NLRB’s verdict. Solomon said employees still would not understand that protected activities are, in fact, permitted.
The fact that GM, with armies of attorneys and a long history of navigating labor issues, has run afoul of the NLRB illustrates just how tricky social media policies can be.
“This shows companies are not immune on the basis of size or unionization from being dinged by the board,” Walters says. “GM has a lot of lawyers. If they can’t pass the sniff test with the NLRB, who can?”
Apparently Wal-Mart can. Solomon held up its policy, revised after an earlier version was found to violate Section 7, as an example to follow. The revised policy met his criteria primarily by providing specific examples of prohibited activity.
So while GM’s provision on respectful online behavior—“Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional”—was held unlawful, Wal-Mart provides sufficient examples so employees would not construe its section on “fair and courteous” online behavior as prohibiting lawful Section 7 activity, Solomon said.
“For instance, the [Wal-Mart] rule counsels employees to avoid posts that ‘could be viewed as malicious, obscene, threatening or intimidating.’ It further explains that prohibited ‘harassment or bullying’ would include ‘offensive posts meant to intentionally harm someone’s reputation’ or ‘posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy,’” he added.
“What we take away from this most recent memo is to try to reduce ambiguity as much as possible and be as specific as possible,” says Brian Kurtz, a Ford & Harrison partner.
That may prove to be an onerous task, Walters adds.
“Come up with hundreds of examples, make it 40 pages long, and require everyone to read it,” he replies when asked for advice to in-house counsel writing a social media policy. “If that strikes you as cumbersome, it is.”