The slippery slope of enterprise social media policies

Ask legal counsel to review your social media policies. If your company doesn't have a social media policy, are you certain you want one?

The U.S. National Labor Relations Board (NLRB) starting receiving complaints from employees in 2010 about employer social media policies and disciplinary actions taken by employers for Facebook posts. The NLRB is an independent federal agency set up in 1935 and tasked to protect the rights of private sector employees who want to join together, with or without a union, to improve wages and working conditions. A key component of that protection is the right of employees to discuss terms and conditions of employment with other employees.

The NLRB has five U.S. presidentially-appointed board members, each of whom serves five-year terms. The board members must have Senate consent, and each year one board member is supposed to be replaced. This board looks at formal records and administrative proceedings in deciding cases. A U.S. president also appoints a general counsel (GC) who serves a four-year term. The GC's role is to investigate and prosecute unfair labor practices cases and to also supervise the NLRB's field offices.

Stacking up the cases

Beginning in August 2011 and into early 2012, the GC looked into cases dealing with things posted on social media, and employer policies covering social media; the GC then issued memos about those cases. Here's how the cases broke out and what was determined.

  • In four cases the GC found that employees were acting within their rights in their use of Facebook when discussing terms and conditions of employment.
  • In one case a union engaged in unlawful practices when it posted an edited version of videotaped interviews with employees to YouTube and its Facebook page. The employees were at a non-union job site talking about their immigration status.
  • In 10 cases there were aspects of employers' social media policies that were overly broad.
  • In one case the employer's social media policies were found to be lawful.
  • In one case the social media policy was considered to be lawful after it was revised.
  • In one case an employer's policy of restricting its employees' contact with the media was lawful.
  • In six cases where employees were fired for things they posted on Facebook, those firings were called unlawful since they originated with unlawful policies.
  • In one case the firing was upheld because the employee was not posting something about work, even though the firing stemmed from an unlawful policy.

Then in May 2012 the GC reported on seven employer policies that governed the use of social media by employees. In six cases only some of the employers' policies were lawful, and the seventh policy was found to be unlawful. Provisions in policies were generally found to be unlawful when they "interfered with the rights employees have under the National Labor Relations Act," including "the right to discuss wages and working conditions with co-workers."

(For more specifics about the cases, download three reports from the NLRB site under General Counsel memos.)

Dangers in overly broad policies

Overall, in 28 cases, the GC found some level of unlawful activity or overly broad social media policies on the parts of organizations. In the two cases where decisions were made about organizational disciplinary actions for social media postings, one case went in favor of the employer and the other in favor of the employee. The numbers tell a cautionary tale because these are administrative decisions that still may be appealed, or even move on to a court of law. The numbers simply tell how the NLRB is currently viewing employer efforts to control employee social media use.

Rachel Arnow-Richman, professor of law with Sturm College of Law at the University of Denver, says the first thing companies should do if they have a social media policy is to have it reviewed by counsel because there are few concrete messages coming from the NLRB, and policies are being looked at through a very broad lens. What seems safe, she says, are policies that prohibit unlawful behavior such as prohibitions against discrimination or disclosure of trade secrets. On the other hand, general prohibitions aimed at discouraging social media use, especially use that might reflect badly on the employer, are treading on more contentious ground. For example, prohibiting discussion about "confidential information" could cause problems for an employer because an employee might construe that language as prohibiting protected communications, such as the right to discuss wages and working conditions with coworkers.

Complicating issues

Seeking counsel in this area is also advisable because of the potentially shifting sands of engagement arising from a challenge to the legality of presidential appointments when Congress is in recess. This could affect decisions made by the NLRB because the people making its decisions are appointed. The Supreme Court agreed in June 2013 to review a federal appeals court decision regarding the constitutionality of presidential appointees. If the court upholds the lower court's decision, the legality of presidential appointees since 1981 could be called into question. Adding to the uncertainty there is also a lack of legal opinions on social media itself.

Arnow-Richman says that because of social media's newness, there is still relatively little case law. In light of the uncertainties, she says that employers who don't already have a social media policy might consider asking themselves these questions:

  • What are you trying to accomplish by having a social media policy?
  • What is it you are trying to stop employees from doing?
  • What policies regarding employee conduct do you already have in place?

Then, discuss with counsel the advantages and disadvantages of creating a social media policy given the risk of liability under the National Labor Relations Act, as well as the likelihood that you might have to change your policy in the coming months or years depending on legal developments. But for those companies that already have social media policies, she says they should definitely be asking their legal counsel to review them.

Legal disclaimer: Professor Arnow-Richman is not providing legal advice. Individuals and companies dealing with this issue should consult their own legal counsel.