January 2013

Navigating Social Media Minefields in the Workplace:
Crafting Effective Social Media Policies

Employers are increasingly concerned with their employees' use of social media in the workplace. The number of social media platforms continues to increase, as do employees' access to and use of such platforms both on and off the job: many employees have access to computers, smart phones and other devices (their own and employer-issued) through which they can readily participate in social media. Employers' concerns lie not only with employee productivity, but also with protecting employer-related trade secrets and proprietary information. Employers are also concerned about their image -- and how that image is affected by their employees' postings on-line. Accordingly, employers are adopting social media policies to protect their interests, and many monitor employees' public on-line presence. At the same time, Federal and State laws protect employees' right to freely communicate about working conditions, wages and benefits without fear of disciplinary action. In a number of recent cases, the National Labor Relations Board ("NLRB") has made clear that these rights extend to the cyber-world as well as to the workplace cafeteria and the dinner table. These cases, summarized by the NLRB in recent guidance memoranda, illustrate just how difficult it can be to navigate the line between employer and employee rights in the very public environment of the Internet, with the distinctions between lawful and unlawful policies hinging on context and careful crafting.

Consider, for example, the NLRB's decision holding unlawful an employer's policy prohibiting "offensive, demeaning, abusive or inappropriate remarks." Contrast that decision with another, in which the NLRB approved an employer's policy prohibiting "inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct." While the two employers' intent may have been the same, the NLRB held, in the first instance, that the policy was overbroad, embracing a large set of communications that could include protected criticisms of the employer's labor policies or treatment of employees. In the second, however, the NLRB stated that the language was lawful because it prohibited plainly egregious conduct, such as discrimination and threats of violence.

Further, the NLRB held unlawful an employer's policy prohibiting employees from posting information online regarding that employer that could be considered "material non-pubic information" or "confidential or propriety." According to the NLRB, such a policy could be interpreted by an employee as prohibiting protected disclosures regarding working conditions. At the same time, the NLRB held lawful an employer's policy requiring employees to maintain the confidentiality of the employer's trade secrets and private and confidential information. The NRLB was clearly pleased with the inclusion of "trade secrets" - which apparently offered guidance to the employees on what the employer considered "confidential". Notably, the employer also offered its employees specific examples of confidential and proprietary information - for example, technology, internal reports, procedures and similar content that an employer may rightfully protect. In other words, by specifically identifying categories of information that the rule embraced, an employee was less likely to interpret the rule as infringing on his or her rights to openly disclose and discuss labor conditions.

Clearly, adding specific examples to clarify for employees what type of postings are impermissible is advisable. Employers should be cautious, however, that the examples themselves don't cross the NLRB line. In one case, the NLRB found a company's policy unlawful when it prohibited disclosure of the company's non-public information, including: (a) any topic related to the financial performance of the company; (b) information that has not already been disclosed by authorized persons in a public forum; and (c) personal information about another employee, such as his or her medical condition, performance, compensation or status in the company. Here, the NLRB found that employees could reasonably construe the examples as precluding them from discussing the terms and conditions of their employment among themselves and with others.

Employers also need to tread carefully when establishing procedures for employees to follow. Exhorting employees to abide by intellectual property laws is lawful; requiring them to obtain permission before reusing others' content, logos or images is not: the latter could, accordingly to the NLRB, interfere with the employees' rights to take and post photos of employees on picket lines or those working in unsafe conditions. Similarly, encouraging employees to address grievances through internal procedures is acceptable; telling them that they should do so rather than venting on-line is not. In this case, the NLRB held that such a rule would have the "probable effect" of inhibiting employees from turning to alternate forums for assistance with labor-related concerns.

While the NLRB's decisions may hinge on more than semantics, distilling general and workable guidelines from them is daunting. Perhaps recognizing this, the NRLB's latest guidance memorandum, Memorandum OM 12-59 (May 12, 2012), includes a model social media policy in its entirety, which could be used by employers as a safe haven. That memorandum (and the model social media policy) can be obtained directly from the NLRB website: http://www.nlrb.gov/publications.

At the same time, employers should also be careful about their own on-line practices. In particular, employers monitoring an employee's Internet activity could be crossing another legal line -- that of the employee's right to privacy. For example, the Stored Communications Act, 18 U.S.C. §§ 2701-11, protects an employee's privacy rights in personal stored communications (e.g., personal email accounts), which can extend (again, depending on circumstances) to communications stored on employer-owned equipment (e.g., the login information for the personal email account). And in California, a new law, Labor Code Section 980, expressly prohibits employers from requiring employees to divulge their login information - e.g., user names and passwords - to access personal social media sites or from requiring them to login to their various accounts in the presence of a supervisor.

In short, the growing pervasiveness of on-line activity in multiple virtual venues (Facebook, Google+, Instagram, Pinterst and Tumblr, to name just a few) by both employers and employees, and the blurring lines between the workplace and home have made it more difficult to navigate the line between lawful and unlawful company social media policies, and language that seems like common sense may, in fact, not pass NLRB muster. As the NRLB decisions show, policies should be carefully crafted to ensure that employees cannot construe them as inhibiting their rights to discuss work conditions. Using the NLRB model policy may be one approach; having an existing policy vetted by an attorney or human resources consultant with expertise in the area is another. In any case, having a clear and effective policy in place is essential in today's working environment.

For more general information on social media policies, or referrals to human resource consultants and employment lawyers with expertise in this area, please contact either Lawrence Inouye linouye@shiotani-inouye.com or Colleen Sechrest csechrest@shiotani-inouye.com.