Setting Boundaries on Social Media

The NLRB's guidance on social-media activities by employers and employees are similar to traditional communication rules, experts say. But the wide variety in circumstances and the evolving nature of the law make it a complex issue for HR leaders.

Monday, September 19, 2011
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As employers ponder a guidance offered by the National Labor Relations Board on appropriate employee use of social media, the U.S. Chamber of Commerce has reviewed the Board's actions in those cases that have been brought before it to date.

The NLRB's guidance, issued in August, is intended to offer organizations -- whether they are union or not -- a clear purpose and set of boundaries to follow when putting together social-media policies.

"This is the first step, not the final word, on a path to establish clearer boundaries on the permissible scope of employers' social-media policies," says Jeffrey S. Klein, partner and chair of the employment litigation practice group at Weil, Gotshal & Manges in New York.

"The legal principles involved," he says, "are not fundamentally different from the traditional rules governing communications among employees. In large measure, what's new here is simply the delivery mechanism.

"Facebook and Twitter have, in many instances, supplanted the cafeteria or the break room, as the place for employees to gather to communicate," Klein says.

He notes that the NLRB's guidance "will be tested and evaluated by the courts in future litigation, which will hopefully create some more bright-line standards for employers."

A look at some of the Board's standards can be garnered by reviewing the Chamber's report, also issued in August, which offers an in-depth look at the kinds of cases that have come before the NLRB's Division of Advice -- and been decided on -- thus far.

So far, the vast majority of those cases fall into two general categories: employer policies restricting employee use of social media that are alleged to be overbroad and employers terminating or disciplining workers based on comments posted on social media.

The NLRB rulings seem fairly evenly divided between those in support of the employee and those in support of the employer -- and the wide variety of circumstances underscores the challenges social media is now posing to employers and their HR departments.

At the heart of most of the cases lies the issue of whether a punished employee was found to be engaging in activities protected by the National Labor Relations Act, such as talking with co-workers about improving working conditions -- in which case, the employer would be in violation of the law.

But there's a difference between speaking about working conditions, for example, and "mere griping" on the part of an individual, according to the NLRB. The latter is unprotected, as contrasted with a group action, which would be protected.

An example of griping, according to the Chamber, was when a Wal-Mart employee on July 19 posted "Wuck Falmart! I swear if this tyranny doesn't end in this store, they are about to get a wakeup call because lots are about to quit!" That employee was disciplined -- and the NLRB upheld that decision.

There are many more cases and rulings spelled out in detail -- including the actual, sometimes profane, postings in question -- in the NLRB report, the PDF of which is linked to within this NLRB press release and in the U.S. Chamber's report, A Survey of Social Media Issues Before the NLRB, which was put together following a Freedom of Information Act request.

The Chamber received information on 117 charges, seven complaints and five settlements. The Board's Report of the Acting General Counsel Concerning Social Media Cases details 14 of them.

The interaction of labor law and social media came to the fore on Oct. 27, 2010, when the NLRB's general counsel filed a complaint against a Connecticut ambulance-services company after if discharged an employee who had made disparaging remarks about her supervisor on Facebook.

Since then, Acting General Counsel Lafe Solomon directed regional NLRB offices to submit to the Advice department all cases that involve "employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media," such as Facebook or Twitter.

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"The laws are still evolving, the rules are still evolving and the interpretations are still evolving," says Nancy Flynn, executive director of The ePolicy Institute in Columbus, Ohio, and author of The e-Policy Handbook and soon-to-be-published The Social Media Handbook.

"Meanwhile, while all that fuzziness is going on, we've got the number of people adopting social networking increasing exponentially, every day," she says. "The use of technology and the content that's being posted in public is marching along at breakneck speed and the regulations are sort of struggling to keep pace. Clearly, the laws have not caught up with technology."

Adding to this complication is the existence of privacy laws in some states, but not others. As for the federal government, the Obama administration is currently considering offering legislation in that regard.

"So, you have employees who could get one ruling in one state regarding privacy and another [different ruling] in another state," Flynn says.

Employers, she says, however, should not be scared off from drafting and enforcing a policy governing social-media use, but "before you roll out that policy ... have a qualified legal expert review it to make sure all your 'i's are dotted and 't's are crossed regarding federal laws -- including the Electronic Communications Privacy Act -- and state laws."

Flynn recommends companies establish teams to draft their policies -- a senior executive or two, plus experts from legal, compliance, HR, IT, training "and your media-relations director ... because the potential for reputation damage with social media is huge."

What legal experts agree about, she adds, is that if any post or comment or blog or tweet "is menacing or inappropriate, or otherwise offensive, those postings are not protected by the NLRA."

Klein agrees that "nothing in [the NLRB] report should prompt employers to abandon their social-media policies" or their plans to create them.

"Nothing in Section 7 of the NLRA precludes employers from establishing policies that sanction inappropriate online behavior," he says. "Employers continue to have legitimate concerns [and rights] to restrict posts that are nothing more than 'griping.' "

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