Stay Out of Hot Water with an Effective Social Media Policy

Avoid common social media policy pitfalls that could land you in hot water with the NLRB.

Posted by Joe Gerard in Code of Conduct, Human Resources on March 13th, 2012

As recent cases demonstrate, employers need to be careful about what they put in a company’s social media policy. An overly broad policy, such as one that prohibits talking about your company on social media sites, is unenforceable, illogical and is usually ends up being worse than having no policy at all. Attempts to enforce an overly broad policy can lead to a National Labor Relations Act (NLRA) violation.

Social Media Policies Gone Wrong

In the NLRB’s Report to the General Counsel, issued earlier this year, the NLRB compiled a second series of social media cases and analyzed each of the decisions. In one of the cases included in the report, an employee at a home improvement store was fired for comments she made on Facebook.

The NLRB had found that the company had lawfully terminated the employee for her Facebook comments, as the employee was found to be griping about an incident, which isn’t considered a protected activity. However, the employer’s new social media policy is what got them into trouble. The report addressed some of these “problem areas”, stating:

The section concerning restrictions on the use of the Employer’s confidential and/or proprietary information provided that, in external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.

The Employer’s employee handbook contained a no solicitation/no distribution rule. This rule stated that employees may not solicit team members while on company property and that employees may not solicit others while on company time or in work areas.

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The NLRB explained why these sections of the policy were considered to be unlawful:

Employees have a Section 7 right to discuss their wages and other terms and conditions of employment. Here, the Employer’s rule limits employee discussion of terms and conditions of employment to discussions conducted in an “appropriate” manner, thereby implicitly prohibiting “inappropriate” discussions of terms and conditions of employment. The policy does not define what an “appropriate” or “inappropriate” discussion of terms and conditions of employment would be, either through specific examples of what is covered or through limiting language that would exclude Section 7 activity. We concluded that employees would therefore reasonably interpret the rule to prohibit protected activity, including criticism of the Employer’s labor policies, treatment of employees, and terms and conditions of employment.

We also found that the “savings clause” in the Employer’s social media policy was insufficient to cure the ambiguities in the rule and remove the chill upon Section 7…We also determined that the no-solicitation rule was unlawfully overbroad. Rules that ban solicitation in non-work areas during non-work time are “an unreasonable impediment to self-organization . . . in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.”

Avoid Social Media Policy Pitfalls

Employees need to be able to understand a social media policy and shouldn’t have to read through the lines to try and figure out what each statement implies. When crafting your policy, employers need to ensure compliance with the NLRA and should avoid using vague statements. Some companies include a “savings clause” in their social media policy, but if there are other statements within the policy that are not in-line with the savings clause, you can expect that the NLRB will deem the policy unlawful.

For more information on writing a social media policy that will stand up to the scrutiny of the NLRB, register to attend our upcoming webinar, “10 Things to Include in Every Social Media Policy”. The webinar will be led by Sharlyn Lauby, SPHR, CPLP and President of ITM Group, and will take place on Thursday March 22nd at 2pm EDT. Click here to watch a recording of the webinar.

Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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