Mr. Solomon has issued two additional reports regarding terminations of employees pursuant to company policies on social media. The main points for employers are:
- social media policies should not be so broad that they prohibit or deter the kinds of activity protected by the National Labor Relations Act, such as a genuine discussion of work conditions; and
- an employee’s comments or postings on social media sites are generally not protected if they are individual complaints not made in furtherance of generating group discussion among employees.
Mr. Solomon’s guidance has now been incorporated into certain NLRB opinions. On September 7 2012, the NLRB issued its first opinion invalidating an employer’s electronic posting rules in Costco Wholesale Corp. On September 28, 2012, it did so again in Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker. The Costco rule prohibited employees from making statements that “damage the Company… or damage any person’s reputation”. BMW had a policy that stated: “Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The NLRB felt that each policy would “tend to chill” employees from exercising their rights under Section 7 of the National Labor Relations Act (“NLRA”) to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection”. Generally, Section 7 allows employees the right to act with, or as directed by, other employees to gripe about the terms and conditions of their employment without fear of retaliation.
The NLRB’s three reports and its most recent decisions provide that a policy cannot prohibit a wide range of conduct such as a general statement “prohibiting disclosure of the company’s trade secrets” without providing specific examples. Further, the earlier reports found the following types of language in policies to be too broad:
- general language prohibiting the release of confidential information;
- general language prohibiting any commentary on legal issues at the company;
- requiring employees to respect the privacy of others;
- requiring employees to exercise personal responsibility; and
- requiring that employees treat co-workers with respect or use a friendly tone.
As with the language in the Costco and BMW policies, the problem with these statements is that an employee could interpret them as limiting their ability to discuss workplace conditions with coworkers. However, what the NLRB’s Costco and BMW decisions confirm is that broad language providing specific examples of what is and is not permissible is acceptable. For example, language in a social media policy prohibiting employees from inappropriate postings which include “discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct” passes muster because it identifies only plainly egregious conduct and thus would not be considered to be deterring employees from engaging in protected activity.
There is no “one size fits all” policy. As a result, employers should examine their policies in light of the specific issues their business faces and draft a policy with those specifics in mind.
I am happy to discuss your policies with you and assist in modifying them as necessary.