Part of today’s workforce cannot remember a time the Internet wasn’t part of their lives. So it’s probably inevitable when they’re chatting, blogging or otherwise sharing their thoughts with acquaintances or the world at large, their workplace is among the subjects they discuss. Unless you mistakenly believe there’s no such thing as bad publicity, your business probably has adopted, or at least considered, policies on its employees’ use of social media. After all, you’ve invested effort and money building the good name of your business, so you have good reasons not to want your workers engaged in loose or harmful social media chat about it.
The same probably holds true for protecting other facets of your business – customer lists, trade secrets, promoting regulatory compliance, and preventing abuse of co-workers or customers via the social media. Effective social media policies can set useful rules, and even provide defenses to employers disciplining workers engaged in actions harmful to the company. At the same time, it has become much more difficult to craft an employee social media policy that will hold up under increasingly common challenges. The main reason has been an increasingly activist National Labor Relations Board (NLRB), which has moved against the social media policies of numerous employers, claiming they interfere with workers’ rights.
Section 7 of the National Labor Relations Act gives workers, in union and non-union workplaces, the right to engage in “concerted activities,” whether for collective bargaining or other mutual protection or assistance efforts. In the NLRB’s very broad and recently expanded view, this covers just about any action by one worker on behalf of employee interests, and interactions between two or more workers related to pay or job conditions.
On this basis, the NLRB has responded to worker or union complaints by striking down as unfair labor practices workplace rules against such things as discussing pay rates, disclosing information that was “confidential,” “sensitive” or “embarrassing” (too overbroad), using social media while at work (for failing to differentiate between time on duty and break times), and much more.
While some employee actions on social media can still be barred – for example, defamation, disclosure of trade secrets, purely individual issues – crafting such restrictions requires great precision and clarity. That’s because the NLRB judges employer-imposed restrictions not on what they say, but on what employees would likely take them to mean (any ambiguity in the wording is construed against the employer).
So the NLRB can disallow a social media policy not just for explicitly restraining employees’ Section 7 rights (for example, a “never-disparage-the-company” rule, or one adopted in response to a unionization campaign), but also any rule, no matter how neutrally expressed, that the agency feels would likely restrict employee exercise of those rights.
In another recent, controversial move, the NLRB has voted 3-2 to reverse an earlier rule that employers need not make available their internal communications -- including their email systems -- to unionization campaigns. Like a welter of other NLRB decisions and advisory statements on employer social media policies, this demonstrates the need for employers who already have adopted policies in the area to stay apprised on the many changes in this rapidly-shifting area.
As complex as federal interpretations and requirements can be, they are not the only legal hurdle for company social media policies. An increasing number of states, currently around 20, have adopted laws in the area to do such things as forbid employers and their agents from requiring employees or job applicants to disclose their personal Internet accounts or passwords, with certain exceptions.
The key lesson for employers: as social media becomes more significant, you need to find ways to protect your legitimate business interests without running afoul of the many pitfalls for the uninformed or unwary. A skilled, experienced business attorney can play a major role in helping you achieve that result.
If you would like more information about this topic or have general legal questions, please feel free to contact me at (973)949-3770 or via email at email@example.com Offices in: New Jersey New York, Colorado & Puerto Rico and affiliated offices throughout the country.
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