Notwithstanding three social media advice memoranda, and another ruling from the National Labor Relations Board slamming Costco's social media policy, you'd think employers would have a better idea how to revise their social media policies so as not to risk violating the National Labor Relations Act.
Well, not so much.
Except, the Board has recently issued guidance which attempts to clarify certain policy issues for employers. Does it? Well, sort of. It's worth a read.
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Pair rules with examples of clearly illegal or unprotected conduct.
Where employer's generally screw up with social media policies is that they include rules that, in the Board's opinion, your employees would construe as chilling their rights to engage in activities protected under the National Labor Relations Act.
Underscored in a recent Advice Memorandum released late last month from the Board's Office of the General Counsel is that "a rule's context provides the key to the 'reasonableness' of a particular construction." In layman's terms, if you are going to have rules restricting what employee speech via social media, pair them with a long list of plainly egregious/unlawful behavior. Here are two examples from the Advice Memorandum:
DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or [Company] vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age, race, religion, sex, sexual orientation, gender identity or expression, genetic information, disability, national origin, ethnicity, citizenship marital status, or any other legally recognized protected basis under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated by the Company. . .
DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) of information you use and accurately cite copyrighted works you identify in your online communications. Do not infringe on [Company] logos, brand names, taglines, slogans, or other trademarks.
Employees will read rules like these in context. Thus, it is less likely that employees will construe them in a way that chills their rights under the National Labor Relations Act.
Reconsider the savings clause.
One last point that I found interesting about this latest Advice Memorandum is that the Office of General Counsel found that a savings clause further ensures that "employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict [their rights under the Act]." This is a savings clause:
"Nothing in [Company's] social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment."
I'm not sure what to make of this, given the body of law suggesting that a savings clause or disclaimer is ineffective to cure otherwise arguably ambiguous employee handbook provision. But I'm not going to look a gift-horse in the mouth.
Above all, remember that this area remains in constant flux and development. So tread carefully and be sure to loop in outside employment-law counsel before finalizing your social media policy.