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Drafting Social Media Policies in Light of Recent NLRB Decisions

2012 was a big year for the National Labor Relations Board and corporate social media policy.

Beginning with its seminal decision on September 7, 2012 striking down Costco's social media policy, there have been a flurry of NLRB decisions since, regarding policies and the right of employees' to use social media to engage in "protected concerted activity."

What can be learned from these cases? More importantly, how do you craft a social media policy that does not violate the protections of the National Labor Relations Act?

NLRB Strikes Down Costco Social Media Policy

The social media policy maintained by Costco stated:

"Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the Company, defame any individual or damage any person's reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment."

The NLRB struck down this policy, finding that the rules violated Section 8(a) of the National Labor Relations Act.

In so doing, the NLRB set forth the appropriate test for determining whether or not a rule would be struck down:

"In determining whether the maintenance of a work rule violates Section 8(a)(1), the appropriate inquiry is whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). If the rule explicitly restricts Section 7 rights, it is unlawful. Lutheran Heritage Village-Livonia, supra. If it does not, "the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights." Id. at 647."

Under Section 7, "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

The NLRB found that the rule violated the NLRA because although it did not specifically reference Section 7 activity, "the broad prohibition against making statements that 'damage the Company, defame any individual or damage any person's reputation' clearly encompasses concerted communications protesting the Respondent's treatment of its employees. . . Indeed, there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule."

The Board reasoned that employees could therefore reasonably conclude that the rule prohibited them from engaging in protected activities. Thus, the rule had a "reasonable tendency to inhibit employees' protected activity and, as such, violates Section 8(a)(1)."

Subsequent NLRB Decisions Continue to Strike Down Overly Broad Prohibitions

In the Karl Knauz Motors case, decided on September 28, 2012, the NLRB reiterated the rule and test from the Costco case.

The policy at issue there stated:

"Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership."

The NLRB found this policy, like the one in Costco, "unlawful because employees would reasonably construe its broad prohibition against "disrespectful" conduct and "language which injures the image or reputation of the Dealership" as encompassing Section 7 activity, such as employees' protected statements--whether to coworkers, supervisors, managers, or third parties who deal with the Respondent-- that object to their working conditions and seek the support of others in improving them."

Particularly convincing to the NLRB that the policy was unlawful were similar factors to those in the Costco case: 1) There was no statement exempting protected communication from the purview of the rule; and 2) Employees would reasonably conclude that any statements of protest or criticism of the company would be found to violate this rule.

In this case, although the policy was struck down, the Board adopted the opinion of the Administrative Law Judge that the employee was fired due to activity that was not protected by the NLRA, that is, a Facebook posting about a car accident at another dealership.

Two subsequent decisions by Administrative Law Judges are also instructive.

In Echostar Technologies, the social media policy was determined to be unlawful by an Administrative Law Judge on September 20, 2012, and the order was adopted by the Board on November 2, 2012.

In that case, the social media policy at issue contained the following statements:

"(i) You may not make disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services; and (ii) Unless you are specifically authorized to do so, you may not: Participate in these activities with EchoStar resources and/or on Company time . . . ."

The ALJ found that the terms "disparaging or defamatory comments" intruded on employees' Section 7 protected activities, and that and the employees' Section 7 activities would be impermissibly chilled thereby.

Moreover, the ALJ determined that certain savings clauses did not save the rule from invalidity. In pertinent part, those clauses read:

"Should you have questions about the Handbook, please contact the Human Resources Department.

Should a conflict arise between an EchoStar policy and the law, the appropriate law shall be applied and interpreted so as to make the policy lawful in that particular jurisdiction."

In rejecting the savings clauses, the ALJ concluded that the direction to talk to HR "does not create a legal loop that an employee must jump through before the force of the rules may be tested." Secondly, "a general clause or other language asserting that a document should be applied and interpreted in such a manner that it is legal proper does not save an otherwise invalid rule under the Act." Essentially, the ALJ found that neither clause served to lessen the chill on employees that the prohibition caused.

The second case, Dish Network, involved the following policy:

"You may not make disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services. . .

Unless you are specifically authorized to do so, you may not Participate in these activities with DISH Network resources and/or on Company time . . ."

An Administrative Law Judge issued a decision on November 14, 2012, finding that this policy (among others) violated the NLRA on two grounds. First, the term "disparaging or defamatory comments about DISH" was similar to the prohibited negative commentary in the Costco and Knauz cases, that were struck down.

Second, the policy banned employees from these activities during "Company time." The decision noted other cases where such prohibitions were presumptively invalid, because "they fail to clearly convey that solicitation [i.e. for union activities] can still occur during breaks and other non-working hours at the enterprise."

Tips on Crafting Your Social Media Policy

Several concepts should be incorporated into your social media policy, in light of the holdings in the above cases, the discussions of the policies at issue and an instructive memorandum issued by the NLRB, in 2012:

1. Include a statement that employee communications protected by Section 7 of the Act are excluded from any rules contained in your policy. Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.

2. A broad saving clause will not save otherwise offending prohibitions.

3. Restricting activities that could encompass Section 7 protected activities "during Company time" has been found unlawful.

4. Cautioning employees about unwittingly divulging confidential information does not proscribe any particular communications and such provisions have been found lawful. However, broad restrictions on disclosing confidential information have been struck down because they have been found to restrict the right to right to discuss wages and conditions of employment with third parties as well as other employees.

5. Mandating that social media posts be "completely accurate and not misleading" is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer's labor policies and its treatment of employees that would be protected by the Act so long as they are not maliciously false.

6. Instructing employees not to "reveal non-public company information on any public site" has been interpreted as precluding employees from discussing terms and conditions of employment among themselves or with non-employees, and is therefore unlawful.

7. Any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the Act.

8. Employees' non-commercial use of the Employer's logo or trademarks while engaging in Section 7 activities would not infringe on the Employer's proprietary interest.

9. Specific prohibitions on discussing safety performance or secret, confidential or attorney-client information have been found lawful.

10. Broad provisions barring offensive or disparaging comments have been struck down.

11. Instructing employees to "think carefully about 'friending' co-workers" is unlawfully overbroad because it would discourage communications among co-workers, and thus it necessarily interferes with Section 7 activity.

12. Requiring employees to "report any unusual or inappropriate internal social media activity" is unlawful because it would encourage employees to report protected union activities.

13. Prohibitions on employees commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the Employer.

14. Broad prohibitions against improper tone have been construed to prohibit robust but protected discussions about working conditions or unionism.

15. Urging employees to respect copyright and other intellectual property laws is appropriate.

16. Encouraging employees "to resolve concerns about work by speaking with co-workers, supervisors, or managers" was unlawful because it would likely have the effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.

17. Prohibiting online "harassment, bullying, discrimination and retaliation" is lawful.

18. Prohibiting "unauthorized postings" in the name of the Employer is lawful.

19. Prohibition on representing "any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer]" is lawful.

20. Broad prohibition against contact with the media was unlawful.

21. Broad prohibition against contact with government agencies was unlawful.

22. Use specific examples of prohibited activities rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity.

The report issued by the NLRB is particularly helpful to counsel or employment attorneys seeking to draft or revise their social media policy in light of the NLRB's most recent holdings. Not only does it contain a detailed discussion of policy provisions that violate the NLRA, it also contains a copy of an entire social media policy determined to be lawful by the General Counsel of the NLRB.

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