Social Media Policies in the Workplace

As a result of the settlement, AMR agreed to revise its company policies to, among other things: not improperly restrict employees from discussing their jobs and working conditions while not at work; and not discipline or discharge employees for engaging in such discussions while off duty.

A Similar Situation

In April 2011, the New York Times reported that the NLRB told Thomson Reuters that it planned to file a civil complaint accusing the company of illegally reprimanding a reporter over a public Twitter posting. Apparently, Thomson Reuters invited employees to post messages about how the company could become a better place to work. In response to the request, Deborah Zabarenko, the agency's environmental reporter in Washington and the head of the Newspaper Guild at Reuters, posted the following message on Twitter: “One way to make this the best place to work is to deal honestly with Guild members.” Ms. Zabarenko told the Times that after the posting, the Bureau chief called her at home, and, as a result of that call she felt “threatened.”

What the Law Says

Although employers have a legitimate interest in protecting against disclosure of trade secrets and other private information, it is a long-standing Federal law that they are not permitted to restrict employees' rights to unionize, bargain collectively and, generally, discuss the terms and conditions of their employment. These rights apply to social media and the Internet in general. So how does an employer craft a policy to navigate through these laws yet accomplish their company goals? Below are some basic guidelines.

• All employers (even non-union shops) must review their policies to ensure that they are not too broad, and that the policies don't hamper the employees' rights to engage in protected activity. Keep in mind that one of the keys to the NLRB/AMR settlement was that AMR agreed it would not restrict its employees from “depicting the company in any way” and from making “disparaging remarks when discussing the company.” As a result, companies must watch how they define prohibited activities.
• Carefully review the wording in your social media policies. For example, prohibitions against “defamation” in the workplace are generally lawful; however, prohibitions against “disparagement” are deemed too broad and might include online “complaining” that is protected. Currently, there is some debate about whether or not employers
  can include non-disparagement provisions in their social media policies if the policy contains notice it is not intended to prevent employees from discussing terms and conditions of employment. Unless there is some clarification on this issue, many commentators are advising employers not to restrict garden-variety disparagement.
• Do not prohibit “fraternization.” Some employers may try to prohibit employees from socializing after hours. The origins of these policies are most likely to curb nefarious activities like drinking, improper sexual relationships between co-workers, and the like. Even though these may be honorable intentions, they may backfire because a prohibition against socializing, either via social media or the more old-fashioned “in-person” socializing, can run afoul of state or federal laws.
• Do not threaten to fire or discipline employees if they use social media to communicate their thoughts and feelings regarding the workplace. But keep in mind that prohibitions against using social media while at work may still be prohibited. However, such prohibition must be part of a broader policy that explains the “do's and don'ts” of employees' use of Internet-based applications while at work.
• Check out the Advice Memorandum issued by Barry Kearney, Associate General Counsel of the NLRB, in the Dec. 4, 2009 Sears Holdings, Cause number 18-CA-19081 case. The Memo gives employers a reasonable and workable framework for analyzing whether a social media policy is improperly overbroad because it would tend to “chill” employees' Section 7 activities. The policy at issue in Sears Holdings prohibited employees from, among many other things, disparaging the company's “products, services, executive leadership, employees, strategy, and business prospects.” The General Counsel's office looked at whether or not the policy was overly broad, whether or not Sears used the policy to discipline anyone and whether the policy was a knee-jerk reaction to respond to employees' protected “union-related” activities. The Memo requires consideration of the entire policy in the context under which it was enacted before concluding whether the policy was overbroad. It is a must-read for anyone drafting or implementing social-media policy.
• Your policy should not prohibit employees from identifying themselves as employees of your company. To the contrary, federal law requires employees to disclose that they are an employee of their employer whenever they communicate information about the employer. The employees should be reminded of this, and that when communicating information about their employer, they need to advise those reading the posts that their views are not those of their employer.
• Make sure that your social media policy applies to all forms of electronic communication ' such as e-mail, text messages, instant messaging, message boards, Facebook, Twitter, YouTube, etc.
• Remind employees, via your social media policy, that what they post may be in cyberspace forever. Even though the posts can be removed by the employee, someone, somewhere may have copied or downloaded these posts before they were removed.
• Employees need to be reminded that they are prohibited from posting or otherwise disclosing confidential and/or proprietary information about their employers on any social media sites.

Like all policies, the social-media policy must be clear, concise, easy to implement and follow. Furthermore, implementing the policy is only part of the process. Employers must take steps to make sure employees understand the policy, and that it is consistently applied.

Gary S. Kessler, a member of this newsletter's Board of Editors, is a shareholder of Kessler Collins PC in Dallas. He is board certified in Civil Trial Law by the Texas Board of Legal Specialization, is a Fellow of the Litigation Counsel of America and a member of the Dallas Inns of Court. Anthony J. Barbieri is a shareholder of the firm, a Fellow of the Litigation Counsel of America, and a member of the State Bar of Texas, Dallas Bar Association and American Bar Association.

For Twitter, LinkedIn, Facebook and Google+ followers, click here to subscribe to Employment Law Strategist at a special introductory rate of $279. This offer is valid for new subscribers only.

In October 2010, the National Labor Relations Board (NLRB) issued a complaint against American Medical Response (AMR), a Connecticut ambulance company. This action was coined the “Facebook Firing” case. The complaint centered on AMR's termination of an employee after her Facebook postings depicted negative comments about the company and the employee's supervisor. The NLRB took the position that the firing violated Section 7 of the National Labor Relations Act (the Act). Section 7 of the Act gives all employees (union and nonunion) the right to engage in protected concerted activities that are usually group activities (two or more employees acting together) attempting to improve working conditions, such as wages and benefits. Employers may not interfere with, restrain, or coerce employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective-bargaining purposes, or engaging in protected concerted activities, or refraining from any such activity. An employee is engaging in Section 7 activities when he or she complains about wages, hours or working conditions on behalf of himself and other employees, and may not be disciplined or discharged for these actions. The NLRB argued that, pursuant to the Act, the Facebook postings constituted an exercise of the employee's protected right to discuss the terms and conditions of her employment.

Settlement

The case was closely followed by employment lawyers across the country. But the day before the hearing, AMR and the NLRB settled the case. In April 2011, the National Labor Relations Board issued a press release announcing the settlement of the NLRB's Complaint against AMR. In that complaint, the Board alleged that AMR maintained an overly broad handbook policy regarding blogging, Internet posting and communications between employees, and had unlawfully terminated an employee pursuant to that policy after she had posted critical comments about her supervisor and responded to further comments from her co-workers.

As a result of the settlement, AMR agreed to revise its company policies to, among other things: not improperly restrict employees from discussing their jobs and working conditions while not at work; and not discipline or discharge employees for engaging in such discussions while off duty.

A Similar Situation

In April 2011, the New York Times reported that the NLRB told Thomson Reuters that it planned to file a civil complaint accusing the company of illegally reprimanding a reporter over a public Twitter posting. Apparently, Thomson Reuters invited employees to post messages about how the company could become a better place to work. In response to the request, Deborah Zabarenko, the agency's environmental reporter in Washington and the head of the Newspaper Guild at Reuters, posted the following message on Twitter: “One way to make this the best place to work is to deal honestly with Guild members.” Ms. Zabarenko told the Times that after the posting, the Bureau chief called her at home, and, as a result of that call she felt “threatened.”

What the Law Says

Although employers have a legitimate interest in protecting against disclosure of trade secrets and other private information, it is a long-standing Federal law that they are not permitted to restrict employees' rights to unionize, bargain collectively and, generally, discuss the terms and conditions of their employment. These rights apply to social media and the Internet in general. So how does an employer craft a policy to navigate through these laws yet accomplish their company goals? Below are some basic guidelines.

• All employers (even non-union shops) must review their policies to ensure that they are not too broad, and that the policies don't hamper the employees' rights to engage in protected activity. Keep in mind that one of the keys to the NLRB/AMR settlement was that AMR agreed it would not restrict its employees from “depicting the company in any way” and from making “disparaging remarks when discussing the company.” As a result, companies must watch how they define prohibited activities.
• Carefully review the wording in your social media policies. For example, prohibitions against “defamation” in the workplace are generally lawful; however, prohibitions against “disparagement” are deemed too broad and might include online “complaining” that is protected. Currently, there is some debate about whether or not employers
  can include non-disparagement provisions in their social media policies if the policy contains notice it is not intended to prevent employees from discussing terms and conditions of employment. Unless there is some clarification on this issue, many commentators are advising employers not to restrict garden-variety disparagement.
• Do not prohibit “fraternization.” Some employers may try to prohibit employees from socializing after hours. The origins of these policies are most likely to curb nefarious activities like drinking, improper sexual relationships between co-workers, and the like. Even though these may be honorable intentions, they may backfire because a prohibition against socializing, either via social media or the more old-fashioned “in-person” socializing, can run afoul of state or federal laws.
• Do not threaten to fire or discipline employees if they use social media to communicate their thoughts and feelings regarding the workplace. But keep in mind that prohibitions against using social media while at work may still be prohibited. However, such prohibition must be part of a broader policy that explains the “do's and don'ts” of employees' use of Internet-based applications while at work.
• Check out the Advice Memorandum issued by Barry Kearney, Associate General Counsel of the NLRB, in the Dec. 4, 2009 Sears Holdings, Cause number 18-CA-19081 case. The Memo gives employers a reasonable and workable framework for analyzing whether a social media policy is improperly overbroad because it would tend to “chill” employees' Section 7 activities. The policy at issue in Sears Holdings prohibited employees from, among many other things, disparaging the company's “products, services, executive leadership, employees, strategy, and business prospects.” The General Counsel's office looked at whether or not the policy was overly broad, whether or not Sears used the policy to discipline anyone and whether the policy was a knee-jerk reaction to respond to employees' protected “union-related” activities. The Memo requires consideration of the entire policy in the context under which it was enacted before concluding whether the policy was overbroad. It is a must-read for anyone drafting or implementing social-media policy.
• Your policy should not prohibit employees from identifying themselves as employees of your company. To the contrary, federal law requires employees to disclose that they are an employee of their employer whenever they communicate information about the employer. The employees should be reminded of this, and that when communicating information about their employer, they need to advise those reading the posts that their views are not those of their employer.
• Make sure that your social media policy applies to all forms of electronic communication ' such as e-mail, text messages, instant messaging, message boards, Facebook, Twitter, YouTube, etc.
• Remind employees, via your social media policy, that what they post may be in cyberspace forever. Even though the posts can be removed by the employee, someone, somewhere may have copied or downloaded these posts before they were removed.
• Employees need to be reminded that they are prohibited from posting or otherwise disclosing confidential and/or proprietary information about their employers on any social media sites.

Like all policies, the social-media policy must be clear, concise, easy to implement and follow. Furthermore, implementing the policy is only part of the process. Employers must take steps to make sure employees understand the policy, and that it is consistently applied.

Gary S. Kessler, a member of this newsletter's Board of Editors, is a shareholder of Kessler Collins PC in Dallas. He is board certified in Civil Trial Law by the Texas Board of Legal Specialization, is a Fellow of the Litigation Counsel of America and a member of the Dallas Inns of Court. Anthony J. Barbieri is a shareholder of the firm, a Fellow of the Litigation Counsel of America, and a member of the State Bar of Texas, Dallas Bar Association and American Bar Association.

For Twitter, LinkedIn, Facebook and Google+ followers, click here to subscribe to Employment Law Strategist at a special introductory rate of $279. This offer is valid for new subscribers only.