5 tips for a social media policy that won’t rile the NLRB

Law360, New York (October 22, 2012, 9:37 PM ET) — With the National Labor Relations Board having recently issued its first-ever decisions on how traditional labor law principles apply to social media, experts gave Law360 their best tips on what employers can do to prevent their social media policies from landing them in hot water.

The board handed down its first social media rulings in September, but the question of how the National Labor Relations Act applies to employer social media policies started attracting attention when NLRB acting General Counsel Lafe Solomon published three reports outlining his views on the subject, and administrative law judges had weighed in on charges against employers.

In a pair of rulings attorneys say should prompt employers to review their policies, the board shot down CostcoWholesale Corp.’s electronic posting rules and approved Knauz Motors Inc.’s decision to fire a salesman overFacebook postings about an accident at an adjacent dealership.

“If you have [a social media policy] pull it down and look at it,” Denise M. Keyser of Ballard Spahr LLP said. “Odds are that unless it was drafted within the last couple of weeks, it doesn’t comply with the most current law.”

And as social media is likely to stay at the forefront of the NLRB’s agenda, lawyers offered these tips on what employers can do to keep their policies off the board’s radar:

Be Specific

The chief concern animating the NLRB’s examination of social media policies is that overbroad policies will chill the right of employees to engage in concerted activity protected by Section 7 of the NLRA. In the Costco case, for example, the board concluded that a provision barring employees from posting statements online that harmed the company’s reputation or anyone else’s ran afoul of the law because because employees could read it as a ban on protesting the company’s treatment of its workers.

To avoid the appearance of overreaching, employers should strive to create policies that target specific behaviors that violate the law or company policies and should direct their social media rules toward curbing those, rather than trying to regulate the bulk of how their employees’ online conduct, attorneys say.

“Less is more,” said Ogletree Deakins Nash Smoak & Stewart PC shareholder Mary Wright, who also serves as general counsel of the firm. “The shorter and more succinct your policy is, the better off you will be.”

This doesn’t mean leaving out key provisions, Wright said, it just means not excessively trying to regulate off-duty conduct by employees, which is illegal in several jurisdictions even outside the NLRA context.

A more streamlined policy gives the board less to find fault with, she said.

And a narrowly tailored policy that really gets at the heart of what the employer is trying to accomplish is more likely to be acceptable to the board, since it will be clear that the employer’s goal is not to tamp down protected activity but to advance legitimate business interests, attorneys say.

“You should think about what you need to protect as an employer and identify the company interests that are at stake in your policy, and then be as specific as possible,” Keyser said. “Take a minimal approach and ban the stuff you need to ban and don’t go beyond that.”

Give Examples

One of the best ways for an employer to ensure that a policy stays specific is to provide concrete examples of the conduct that is being prohibited, attorneys say.

“What [the NLRB] expects employers to do is carefully define their terms so that all ambiguities are removed and a person reading the policy walks away with a very clear understanding,” Steve Bernstein of Fisher & Phillips LLP said. “Breaking down concepts to examples is one easy way to do this.”

A policy that includes a list of examples demonstrating the employer had behavior that wasn’t protected concerted activity in mind when it put the policy in place is less likely to attract the board’s attention, attorneys say.

“Two things that employers do that will draw scrutiny is prohibit broad categories of statements or conduct or require broad categories of statements or conduct,” Ronald Meisburg of Proskauer Rose LLP said.

Instead of including blanket prohibitions on activities like disclosing confidential information or requirements like being respectful at all times, which could be construed by the board as interfering with employee rights, employers should give specific examples of the kinds of information or conduct they are referring to, Meisburg, a former NLRB general counsel and board member, said.

“Employers should give examples of what they’re talking about that are not related to the terms and conditions of employment, but to such concerns as the employer’s business products, trade secrets or customers,” Meisburg suggested.

Do Your Homework

The two decisions the board has issued so far offer only so much guidance for employers, so businesses should also look to the guidance that acting general counsel Solomon has provided — especially since the board appears to be agreeing with his positions so far, attorneys say.

Although there is no guarantee that the board will always act in accordance with Solomon’s views, employers would do well to examine his reports for hints on how the board might rule on the issues it has yet to address, lawyers told Law360.

“The board hasn’t given any indication that they disagree with the general counsel, and in fact the decisions that have come down fall pretty much in line with the general counsel’s memoranda,” Ballard Spahr’s Keyser said.

Especially useful for employers in drafting or revising their policies is the inclusion of Wal-Mart Stores Inc.’s policy, which was found to be lawful in the acting general counsel’s third memorandum, Keyser said.

“It is a good idea to start with the Wal-Mart policy, which is the lawful policy in the third general counsel report,” she said. “You can use it as a template that you can tweak and revise to meet your needs.”

Consider a Disclaimer

One place where it looks like the board’s stance may not be in line the acting general counsel’s position is on the issue of savings clauses. While Solomon has indicated that a savings clause can’t fix an otherwise unlawful policy, the board’s rulings in both the Costco and Knauz Motors cases leave open the possibility that a disclaimer could make a difference, attorneys say.

In both decisions, the board found fault with the fact that policies governing employee communications did not suggest that they excluded NLRA-protected activity, leaving some room for an argument that such a suggestion could save an employer’s policy.

Lawyers told Law360 that while a savings clause will not cure a policy that otherwise obviously overreaches, it could be used as an argument in the employer’s favor when attached to a policy in which the employer is obviously making a good faith effort to comply with the law.

“I would always encourage an employer to put one in, especially if it is narrowly tailored, but in the same breath, as a practitioner, I would tell them that it is not a panacea; it just helps you along the spectrum of risk,” Fisher & Phillips’ Bernstein said.

However, some say that an employer is better off doing its best to write a lawful policy and leaving the disclaimer off.

“My personal view is that a disclaimer is a bad idea,” Ross Friedman of Morgan Lewis & Bockius LLP said. “There is enough guidance so an employer can craft a policy that is compliant with the law, and to stick that in just highlights to employees: ‘by the way, here are a bunch of other rights that aren’t really related.’”

Stay Current

The board’s first two social media decisions won’t be its last, so employers must keep themselves informed as the law continues to develop, attorneys say.

“This is a fluid area of the law,” Bernstein said. “When Congress passed the NLRA in 1935, they weren’t thinking about blog sites and social media policy, so the NLRB is trying to fit the square peg social media into the round hole of the law. It is still developing, and it is something to keep an eye on.”

And of course, with the presidential election looming, the potential exists for the composition of the board to change and with it the board’s position on what kinds of policies pass muster.

“This such an emerging area that everything we’re saying now could be changed in six months,” Friedman said.

“Particularly if the the president is not re-elected and the board turns over, the law could be totally different in a year or 18 months,” Friedman said. “And even if that doesn’t happen, there is a lot of guidance coming from the general counsel and from the board, so employers really need to keep current on what’s going on there.”

By Abigail Rubenstein

Editing by John Quinn. Editing by Richard McVay.

From… Employment Law 360 (Requires Registration)

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