Social media is playing an ever-increasing role in our personal and professional lives. Today, it’s common for employees to air their employment gripes through Facebook, Twitter and LinkedIn. And one bad post by a disgruntled employee can easily go viral, threatening a company’s reputation, brand and relationship with its customers and employees.

Employers often attempt to control these posts by creating social media policies that cover what their employees can publish about their employment for all the world to see. This article summarizes recent decisions by the National Labor Relations Board that attempt to clarify situations where an employees’ right to post is at odds with employers’ social media policies.

In May 2012, the NLRB issued its third report about this issue, which attempted to provide employers with some guidance. It attempted to deal with questions such as: When do employees’ social media postings involve collective employee concerns or concerted activity which are protected under Section 7 of the National Labor Relations Act? When are employers entitled to take disciplinary action against an employee based on an alleged violation of their social media policy? The report, which was one of three the NLRB has issued since August 2011, still leaves the matter unclear.

Serious issues are involved: The cases frequently involve disgruntled employees who are fired for posting comments on social media about a problem at work. Where the NLRB determines that the posting was protected under the National Labor Relations Act, employers have been ordered to reinstate the discharged employee, with full back pay.

The NLRB’s decisions reveal the following: (1) Most importantly, an employee’s posting must involve collective employees’ concerns about the terms and conditions of employment if it’s to be protected. A single employee’s gripe about something that affects him or her alone will generally not be protected. (2) The contents of the posting, including how co-workers responded and all surrounding circumstances, will be considered in determining if it’s protected. (3) Employer policies that are vague, ambiguous or overbroad will not be upheld. Employers’ social media policies should make it clear that they are not intended to restrict employees’ rights to engage in protected Section 7 activity.

Gray Area

Employers need to be careful because, thus far, what is and is not protected under the NLRB rulings is poorly defined. We do know that postings that are overly disruptive or cause infamy or shame are not protected by the National Labor Relations Act. This too is a gray area as some rather extreme expressions have passed muster with the NLRB.

Consider the following:

•An employee of a social service agency posted profanity-laced comments on how the employer’s staffing patterns were compromising patient care. Other employees created postings commenting on the situation. The employees were all fired. The NLRB ruled the postings were protected.

•An ambulance service employee posted comments describing her supervisor as a “dick,” “scumbag” and “a liar and a bitch.” Other employees posted supportive comments. These comments were held to be protected.

•Conversely, a reporter for a newspaper posted tweets that were critical of the paper’s copy editors. Because the employee had not discussed his feelings with his co-workers, had not sought to involve other employees in his publication, and had ignored warnings about the postings from his employer, the NLRB ruled that the tweets were not protected.

•A bartender posted comments about a co-worker who he said was overcharging and “screwing over” customers. He claimed that the terms and conditions of his employment were impacted because customers who learned of the practice might very well stop coming to the bar. That might mean his income would go down. His co-workers posted supportive comments about this in response to his Facebook post. The NLRB ruled that the posting wasn’t protected because he had discussed his concerns with customers of the bar.

Guidelines For Policies

In drafting social media policies, employers and their attorneys should be mindful of the following:

•In separate cases employers’ policies were struck down because the NLRB considered them vague. These were prohibitions against (1) making disparaging comments about the employer in online media; (2) encouraging disrespectful conduct” and “inappropriate conversations” and (3) using social media to engage in unprofessional communications that could negatively impact the employer’s reputation or interfere with the employer’s mission.

•The NLRB struck down another policy that prohibited employees from identifying themselves as being employed by the company unless they were discussing the terms and conditions of their own employment. It stated that any discussions of the terms and conditions needed to be conducted in an “appropriate manner.” The policy did not survive NLRB scrutiny even though it contained a savings clause stating that it should not be interpreted to interfere with an employee’s rights under the National Labor Relations Act.

•The NLRB also struck down a policy that prohibited employees from communicating confidential or sensitive information concerning the employer to outsiders using the employer’s name outside of business, or publishing any representations about the employer without prior approval.

•The NLRB decided that a policy that attempted to restrict employees’ rights to use the employer’s name and/or logo while engaging in communications protected under the National Labor Relations Act was overbroad.

More Specific Guidance

Thankfully, in its May 2012 report, the NLRB provided some useful guidance through its inclusion and approval of Wal-Mart’s social media policy. It ruled that a policy can prohibit “plainly egregious conduct” such as threats of violence or discriminatory statements. The policy includes specific examples that make it clear that protected Section 7 activity is not restricted.

As an example, Wal-Mart’s policy contains a vague warning that employees’ must be “fair and courteous.” The language was upheld because it is coupled with specific examples of prohibited statements, not protected under the NLRA, i.e. those that are “malicious, obscene, threatening or intimidating.”

Attorneys for both employers and employees need to be aware of these evolving rules. Social media is becoming increasingly significant in our lives, and employers’ attempts to regulate what employees post online will likely give rise to another new area of focus for employment lawyers.•