Does Your Social Media Policy Pass Muster With the NLRB? Take the Test...
The National Labor Relations Board – the federal agency charged with investigating and stopping unfair labor practices – continues to scrutinize and find fault with corporate social media policies.
The two most recent NLRB rulings, on policies at Costco and Echostar, demonstrate the difficulties of finding that thin line between protecting business secrets and personal reputations, and violating the law. Costco’s policy, write Neil Goldsmith and Jackie Wernz at law firm Franczek Radelet:
“… prohibits employees from posting statements ‘that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement.’ The NLRB took issue with the breadth of the policy, finding that it ‘clearly encompasses concerted communications protesting [Costco’s] treatment of its employees’ [and] held that Costco’s policy had ‘a reasonable tendency to inhibit employees’ protected activity,’ and therefore violated the NLRA.”
The Echostar policy had a similar restriction. Denise Keyser and Mary Cate Gordon at Ballard Spahr:
“In EchoStar Corp., the [NLRB Administrative Law Judge] found overbroad a prohibition against ‘disparaging or defamatory comments’ about the company, its employees, customers, and their products/services because the ban could be reasonably interpreted to prohibit work-related complaints protected by the law. While an employer may prohibit ‘defamatory’ comments, the broader rule against ‘disparagement’ went too far.”
Would your social media policy pass NLRB muster? Take the test below to find out. [Spoiler alert: If you can answer “yes” to any of the questions below, you probably want to revise your policy.]
1. Are you using a generic, “cookie-cutter” policy?
Why this matters: “While many employers use form social media policies, these forms can no longer be adopted wholesale without revision and need to be customized to address the specifics of the employer's operations. Consequently, every employer with a social media policy should carefully review it to ensure that it (and any other policies restricting speech or activity) can withstand NLRB scrutiny.” (Wilson Sonsini)
2. Does your policy make clear that employees have the right to engage in protected speech?
Why this matters: The [NLRB] was critical of the fact that Costco’s policy did not contain any type of disclaimer stating that it was not intended to interfere with the employees’ rights to engage in activity protected by the National Labor Relations Act.” (Bernstein Shur)
3. Does your policy limit employee communications with the media?
Why this matters: “The policy restricting employees from communicating with the media through print, TV or the Internet without prior authorization was found to violate the NLRA because it chilled employees' right to seek support to improve their working conditions from others outside their workplace.” (Leonard, Street and Deinard)
4. Do you forbid employees from disclosing “confidential information” without defining it?
Why this matters: “[T]he NLRB … issued a decision holding that Costco Wholesale Corp.’s electronic posting rules were overly broad and unenforceable. Among other things, Costco had attempted to ban employees from posting statements online that harmed the company’s reputation, from using or disclosing confidential information (without providing a reasonably detailed definition of that term), and from sharing payroll information.” (Lowenstein Sandler)
5. Does your policy contain specific examples of what is and what is not permitted?
Why this matters: “Generally, policies have been upheld that contain more specific prohibitions rather than a vague statement that employees cannot disparage the Company or employees. Policies should contain specific examples of inappropriate conduct, such as conduct that violates the company’s anti-harassment and discrimination policies or is threatening.” (Fox Rothschild)
- Another Social Media Policy Declared Overbroad - Ballard Spahr LLP
- Social Media Policies under Attack by the NLRB - Wilson Sonsini Goodrich & Rosati
- NLRB Rejects Costco’s Social Media Policy - Bernstein Shur
- Employment and Labor Law Alert: NLRB Strikes Down Many Common Employment and Social Media Policies - Leonard, Street and Deinard
- Does Your Social Media Policy Comply With Applicable Law? Employers May Not “Like” the NLRB’s Recent Costco Decision - Lowenstein Sandler PC
- The NLRB Issues Its First Ruling Striking Down An Employer’s Social Media Policy - Fox Rothschild
- NLRB Clubs Costco Social Media Policy - Constangy, Brooks & Smith, LLP
- National Labor Relations Board Finally Weighs in on Social Media Policies - Franczek Radelet P.C.
- NLRB to Costco: Your Social Media Policy Needs a Do-Over - Mintz Levin
- The NLRB Finds That Social Media Policy Violates The National Labor Relations Act – Orrick
- Revise Your Social Media Policy If It Says This - Collins & Lacy, P.C.
Lance Godard is an editor and social media manager at law news distributor JD Supra. He writes daily on legal issues of the moment, covering numerous industries and fields. Prior to JD Supra, Lance founded and ran 22 Tweets, in which he interviewed lawyers about their professional practice live, on Twitter, via 22 questions. He loves cycling, wearing yellow, and winning, but unlike the other ...
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