As a member of Mitratech’s in-house legal department, I know it can be a daunting task to keep track of the developments in the social media landscape. This is especially true considering social media is becoming an ever-increasing form of marketing, advertising, and personal interaction. If questions surrounding social media have not made their way to your desk, it is only a matter of time. While it seems clear that employers would like to give guidance to their employees regarding posting work-related content, employers should take note that the National Labor Relations Board (NLRB) has issued decisions requiring companies to revise their social media policies to protect certain concerted activities under the National Labor Relations Act (NLRA). This is where in-house counsel plays an important role in the company’s social media policy.
The in-house counsel helps ensure the social media policy is carefully drafted to protect the employer, employee, and customers. For smaller companies, there may be few legal staff members, so it is important to work with a human resources team to ensure a successful policy is implemented with lawful clauses. For example, to simply state that employees may not release confidential company information on social media, without any context, would be unlawful in light of recent NLRB decisions. Instead, it would be appropriate to ask the employee to maintain the confidentiality of trade secrets, processes, products, know-how, and technology. Why the distinction? According to the NLRB, the former is overbroad and might lead an employee to conclude that wages, work conditions, or benefits would be prohibited. This prohibition could have a chilling effect and violate an employee’s rights to participate in concerted activities under Section 7 of the NLRA.
Social media is becoming a larger outlet for employees to lodge complaints about their job, employer, co-workers, or all of the above. Many prospective employees actively check employee-driven review sites to help make employment decisions or research a company before applying for a job. Employers would love to eliminate all negative reviews or discourage those negative reviews on employment review websites. However, the employer must be mindful to create a culture where honest statements surrounding work conditions are encouraged, while protecting the integrity and reputation of the company. Employers should be thoughtful and always promote the practice of speaking to a manager above posting on social media, but should not prohibit such a post. It would be permissible, according to the NLRB, to ask that any posts of that nature be free of threatening, malicious, or insulting language. These are just a couple of clauses to keep in mind while reviewing, or creating, a social media policy. The NLRB published a social media policy which was found fully lawful, and would be a good starting point in developing or updating a company’s social media policy.
Social media laws will keep in-house legal departments on their toes for years to come. As new social media platforms develop every day, the in-house legal staff will continue to be challenged and provide guidance on policies that are instrumental for every company operating today. For more guidance on NLRB social media policy rulings, see National Labor Relations Board, Office of the General Counsel, Division of Operations Management, Memorandum OM 12-59, “Report of the Acting General Counsel Concerning Social Media Cases”.