Federal rules protect workers, so draft your policy with care.
A social media policy is an important tool for any employer, including an association, to prevent sexual harassment, unauthorized disclosure of confidential information, defamation of the employer's reputation, and violations of copyright or trademark rights. But the National Labor Relations Act limits their content.
Section 7 of the NLRA guarantees employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." And Section 8 states that "it shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the act.
Three NLRB memoranda over the past year have illuminated these limitations. Issued in August 2011, January 2012, and May 2012 by the agency's Office of the General Counsel, the memos caution employers in four areas where their social media policies may run afoul of the NLRA:
Bans on postings. Prohibitions against "inappropriate," "disrespectful," "offensive," or "disparaging" postings can be overbroad. Social media policies that chill employee discussions of the employer's disciplinary policies, staffing levels, compensation practices, promotion criteria, and supervisor conduct have been held to violate employees' Section 7 rights to discuss working conditions.
Privacy warnings. Admonitions about protecting customer or coworker privacy may also be unlawful. The NLRB says employees must be free to discuss wages and other conditions of employment, even if some discussions involve the employer's treatment of customers. The board disfavors warnings about privacy if they prevent the exercise of employees' Section 7 rights.
Concern for the employer's reputation. Bans on posting negative comments about the employer are deemed especially contrary to Section 7. A rule prohibiting the unauthorized posting of an employer's logo or photos of its stores or office locations is also unlawful because it would prevent the posting of photos of employees carrying picket signs showing the employer's logo or place of business.
Contact with the media. A rule restricting an employee's right to contact the media about a matter related to the employer is overbroad because employees have a clear Section 7 right to speak to reporters about wages and other terms and conditions of employment. In crafting a social media policy for your association, keep employees' NLRA Section 7 rights in mind, and consult an attorney to ensure your policy is drafted correctly.
Mark E. Truesdell is an attorney with Beving, Swanson & Forrest, P.C., in Des Moines, Iowa. Email: [email protected]
"Employees' Blogs, Facebook Posts, and Tweets May Be Protected," by Ronald W. Taylor, Association Law & Policy, August 2011