In the last two years, the National Labor Relations Board (the “NLRB”) has taken an increased interest in social media policies, and the effect of those policies on protected communications of employees under the National Labor Relations Act (the “Act”). Beginning in 2010, the NLRB has issued decisions and advice with regard to social media that has startled many.  Again and again, employers’ social media policies have been found to violate the Act, and, in turn, employees have been found to have been fired unlawfully. 

The National Labor Relations Act, also known as the Wagner Act, was passed by Congress and signed into law by President Roosevelt in 1935.  In the abstract, the Act was intended to ensure economic advancement and common justice.  To achieve these ends, the Act focused on protecting employee rights, specifically the rights to unionize and join in collective bargaining.  The Act created the NLRB, an independent agency with members appointed by the President, to monitor and enforce the provisions of the Act.  The Act and the NLRB have undergone numerous changes throughout their seventy-five plus years of existence, but the underlying protections established in 1935 have remained largely the same.

In 2012, employers are facing an aggressive NLRB when it comes to social media policies and attempts to govern employee actions on social media platforms.  The NLRB has been fairly quick to adopt the realization that Facebook and other platforms can serve as a virtual water cooler that employees huddle around and discuss their work and working conditions.  Conversations that would have been protected if they occurred around a real water cooler in 1935, are, in 2012, still being protected even though they are occurring virtually.

Unlike the water cooler in 1935, though, today’s employee conversations over social media platforms are available to an international public and can be much more damaging to employers.  This is the set up for the battle between the NLRB and employers who are compelled to take certain steps to protect themselves from a myriad variety of employee communications that have potential to cause serious economic harm.

Employers must have social media policies, just as they must have anti-discrimination policies.  To forgo adopting such a policy means placing your business at serious risk.  Individual employee gripes, while unpleasant, are not the most critical when it comes to safeguarding the economic health of a business on social media sites.  The most important elements to be protected will vary by industry, but some universal concerns include the protection of propriety and confidential information, the protection against copyright and trademark infringement, and the prohibition of illegal and discriminatory acts.

Recently, decisions and advice from the NLRB indicate that the incorporation of a "saving clause" in an employer's social media policy is not sufficient to prevent the policy from violating the Act. The rejection by the NLRB of blanket saving clauses in social media policies is one of the most telling decisions the Board has made with respect to social media policies. 

So-called saving clauses have become common place within social media policies, and provide that nothing in the subject policy should be construed so as to interfere with an employee's rights under the Act.  Similar saving clauses have been used by the legal profession in many contexts.  At best, they constitute  the last of many carefully drafted provisions designed to ensure a policy’s compliance.  At their worst, saving clauses are the lazy drafter’s attempt to ensure compliance without having to dot every “i” and cross every “t’.

The NLRB’s rejection of saving clauses means that all social media policies need to be highly scrutinized and narrowly tailored. There is no more room for the lazy drafter. In essence, employers need to identify the specific types of social media communications that they need to protect against in order to sustain business health, and draft a detailed social media policy that addresses those specific concerns without violating employee rights under the Act.

The identification of the employer’s specific concerns is the first step.  Once a list of concerns has been created, a prioritization process should be used to reduce that list to the items that the specific employer believes must absolutely be protected in order for the business to thrive. That list of critical items should then be culled in the context of the provisions of the Act affording employee protection. With the final, filtered list of items in hand, a very specific social media policy can be drafted that will protect the employer and the employee without relying on overly broad provisions.  Details, context and examples incorporated within the social media policy will be crucial.

The NLRB is a dynamic agency with social media policies in its cross-hairs. The steps outlined above do not guarantee an NLRB-proof social media policy, but, if followed, will certainly clarify your business’s new or revised policy and strengthen it in the face of scrutiny.