Four months ago, you revised your company’s policy on employees’ use of social media. The policy said all the right things: When employees use social media, they should respect the rights of others and treat people with dignity; obey the company’s code of business conduct; maintain corporate confidences; and so on.
Unbelievably, some recent communications from the National Labor Relations Board suggest that each of those provisions (except for the “and so on”) could actually cause your company some labor pains. Why?
Here’s the easy part: The National Labor Relations Act protects employees who engage in “concerted activities” for the employees’ “mutual aid or protection.” Those words apply across the workforce and are not limited to unionized employees. An employee acting solely on his or her own behalf is not engaging in “concerted activities.” On the other hand, consider an individual employee who is working with (or on the authority of) other employees, or is trying to induce a group of employees to act, or is bringing group complaints to the attention of management. The NLRA may protect all of those activities, and an employer may violate the NLRA if it maintains a rule that could reasonably “chill employees in the exercise of their” rights.
What does that mean for the three examples suggested in the opening paragraph of this post?
The social media policy that you finalized this summer was intended to prohibit employees from defaming others or making discriminatory comments in public places. So you naturally wrote in your policy that, when using social media, employees should treat others with respect and not disparage them online. Now it turns out that an employee may have an enforceable right to post or tweet, “The boss is a dirtbag who gives crappy raises” (which does seem a tad disparaging). The insult may actually be an effort on behalf of employees to induce others to act, or perhaps to air a group complaint. The NLRB, if it were having a bad day, might construe your social media policy that forbids disparaging posts to chill employees in the exercise of their protected rights.
So, too, with the provision in your corporate social media policy that says that all employees should respect your company’s code of business conduct. Admit it: No one’s read that 42-page, single-spaced code of conduct for years, and back in ’08 you just inflicted it on the junior guy in the law department who couldn’t say no. The NLRB might notice that your social media policy incorporates the code of business conduct, and the NLRB might just read those 42 pages to see what they say. If those pages say more silly stuff about employees treating each other nicely, you might again be chilling employees in the exercise of protected rights.
What about maintaining corporate confidences? Again, it depends on what you’ve written in corporate policies, and where, and how the statements will be construed. But your corporation may well have one document that says: “We treat issues of compensation as confidential. We will not ordinarily disclose your compensation to others, and we hope that you will similarly treat this information with discretion.” Your social media policy then says that employees should not violate other corporate policies when using social media. Whoops! Since time immemorial (that’s the 1930s for folks thinking about when Congress enacted the NLRA or “ten years before the Flood” for the poets in the crowd), employees have had a protected right to discuss the terms and conditions of their employment, which surely includes information about pay. If your policies chill employees’ exercise of that right, you could be in a heap of trouble.
What’s the solution?
First, the law in this area is evolving rapidly, and the Acting General Counsel of the NLRB released a report in August giving some guidance on these issues. The policy that you finalized in July may already be outdated, so it’s time to revisit it.
Second, at an absolute minimum, you should add a disclaimer to your social media policy to provide some cover: “Of course, nothing in this social media policy is meant to discourage employees from [and then list, generally or specifically, the conduct protected by the NLRA.]”
Third, and much better, pick up last summer’s social media policy; blow the dust off all of those old, unread policies that the social media policy incorporates; and have someone read the darned things with an eye toward complying with the NLRB’s new report. Narrow the broad provisions meant to avoid defamation and discrimination to be sure the rules hit only their intended targets. Perhaps add some explanatory language about the intent of the rules, so that you can prove that these policies were meant to prevent certain types of misconduct and were not meant to chill protected activity.
Finally, don’t assume that the process of revising these policies is ever finished. Review your corporate social media (and other) policies regularly in light of evolving law, to be sure that policies that were innocent when written have not since become actionable.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at [email protected].