The Legal Ambiguities of Social Media

Employers continue to look for guidance on issues related to the evolving use of social media by employees. Creating an appropriate policy remains difficult, but the authors offer some expert advice that may help.

Tuesday, May 29, 2012
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What's good for the goose may not be good for the gander when organizations create social-media policies.

A social-media policy that, among other things, prohibits hate speech, profanity, obscenity or vulgarity, defamation to a person or people, and comments that the owner of the website deems inappropriate, seems to make sense in the 21st-century workplace.

However, Lafe Solomon, the acting general counsel of the National Labor Relations Board, recently declared that such prohibitions violate the National Labor Relations Act as they "would reasonably tend to chill employees in the exercise of their Section 7 rights" (See NLRB Memorandum OM 11-74, published Aug. 18, 2011, and NLRB Memorandum OM 12-31, published Jan. 24, 2012).

So, you are undoubtedly asking yourself, "What scofflaw would maintain such an illegal social-media policy?" The answer to that question is surprising -- the National Labor Relations Board, itself! Arguably, this should not come as a surprise because, unlike many other federal agencies, the NLRB is not covered by the law it was created to enforce (See, for example, 42 USC § 2000e-16, EEOC subject to Title VII).

Yet, when even the NLRB cannot seem to get it right, and offers only a "do as I say, not do as I do" approach to its own social-media policy, the real question becomes: "What's an employer to do?" The answer, unfortunately, is not clear.

In addition to concerns about the amount of time employees may be spending on the various forms of social media, and how that non-work activity may impact overall productivity, employers must also be mindful of the fact that the communications in which employees engage on these various media may be protected under the National Labor Relations Act.

In the quickly evolving landscape of Facebook, Twitter, MySpace, LinkedIn and other social-networking sites, employers are looking for guidance on how to craft social-media policies that are both legally compliant and, well ... helpful.

We can suggest some social-media-policy language that, in light of the NLRB Memoranda, would appear to fall into the "good" or "bad" categories, but employers should review their existing policies to determine whether they are "overbroad" (under the apparent NLRB analysis) and consider carefully any disciplinary action they are contemplating in response to an employee's social-media activity.

The NLRB's Opinions

The NLRA applies to nearly all private employers -- whether unionized or not -- with respect to concerted communications by employees that relate to wages, hours, and terms and conditions of employment.

The NLRB generally takes the position that such communications are protected under Section 7 of the Act (i.e., protected concerted activity) and that employers that take disciplinary action based on such concerted activity may be committing an unfair labor practice in violation of Section 8(a)(1) of the NLRA.

On Aug. 18, 2011 and Jan. 24, 2012, Solomon released two reports "presenting case developments arising in the context of today's social media," in which social-media polices that came under scrutiny following the filing of an unfair labor practice against an employer were analyzed.

 As part of its investigation, the NLRB considered various social-media polices to determine whether the policies, themselves, violated the NLRA (because they were overbroad or too restrictive).

The reports recognized that the issue of social media in the workplace "continue[s] to be a 'hot topic' among practitioners, human resources professionals, the media and the public," and that the reports were intended "to provide guidance as this area of the law develops."

A majority of the cases discussed in Solomon's reports involved similar fact patterns: an employee engaged in discussions with co-workers at work about a workplace issue, i.e., treatment by management, a co-worker's excessive absenteeism that caused additional work for the other employees, wage cuts or work rules that were perceived to be enforced inequitably.

The employee then posted a message on Facebook, for example, to which the employee's co-workers (who are also "friends") respond by "liking" the original post or responding with their own posts or comments.

Thereafter, the employer learned of the post and the ensuing discussions and, ultimately, the employer terminated the employee(s) for the posting.

In several of the cases, the employee's posting occurred during non-work hours so there were no concerns regarding business disruption. Likewise, in most cases, the employer's stated reason for the disciplinary decision was the content of the employee's posting.

Practically speaking, employers faced with such a situation should ask themselves a series of questions before taking any disciplinary action. Furthermore, these questions should be asked regardless of whether the communication was on social media, via old fashioned pen/paper or in the employee break-room or parking lot:

First, was the communication undertaken by two or more employees (or by one employee on behalf of other employees) for union-related purposes or to address terms and conditions of employment? In simplest terms, is the conversation about something work-related? Is it between co-workers?

Second, was the communication intended to prompt additional discussion among employees about workplace issues or concerns?

If the answer to these broader questions is "yes," the likelihood is high that such communications would be considered to be protected as concerted activity under the NLRA. The NLRB definition of "'concerted activity' encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action" (2012 Report).

The 2011 and 2012 reports covered a wide range of very fact-specific scenarios, (and in some instances found that the employees had not engaged in protected concerted activity because the posts were addressing only individual, and not group, "gripes" or concerns).

Notably, in several instances, the reports determined that the social-media policies were overbroad and, because the employer relied on a violation of the overbroad policy to discipline an employee, the disciplinary decision was found to violate the NLRA.

The NLRB made the "overbroad" determination --almost uniformly throughout both reports -- because the recited prohibitions failed to contain any "limiting language" or examples of conduct that the policy was attempting to address or prevent.

For example, the NLRB concluded that "requiring employees to expressly state that their comments are their personal opinions and not those of the Employer every time that they post on social media would significantly burden the exercise of employees' Section 7 rights to discuss working conditions and criticize the Employer's labor policies, in violation of Section 8(a)(1)" (2012 Report).

Following the issuance of those reports, the NLRB continues its tough stance. In late March 2012, an administrative law judge in California determined that a security company's policy forbidding employees from commenting on work-related legal matters without express permission from the company's legal department ran afoul of the NLRA, while the prohibition on posting photos to social-networking sites did not (See case number 28 CA 023380, reported April 2, 2012 Law360, "NLRB Judge Slams Security Co.'s Ban on Social Media Talk.").

The "ALJ held that while the provision of the policy concerning discussions of legal matters did not expressly restrict employees' Section 7 rights, it could be reasonably construed to prevent the company's workers from discussing working conditions and other terms and conditions of employment, particularly where the discussions concern potential legal action employees may have filed."

Similarly, the NLRB reports expressed concerns regarding attempts by an employer to block -- for example -- employees from using a company's trademarked logo in social media. That was considered, generally, to be in violation of an employee's Section 7 rights.

"Interests protected by trademark laws -- such as the trademark holder's interests in protecting the good reputation associated with the mark from the possibility of being tarnished by inferior merchandise sold by another entity using the trademark and in being able to enter a related commercial field and use its well-established trademark, and the public's interest in not being misled as to the source of products using confusingly similar marks -- are not remotely implicated by employees' non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity" (2012 Report).

As evidence of this conviction, in late February 2012, the NLRB filed a complaint against a group of Hyatt Hotels alleging, among other things, that the restrictions placed on the use of social media, such as admonitions not to comment on hotel properties or locations, or to use the Hyatt brand/logo or photos of the properties, were overboard and discriminatory (See 28 CA 061114).

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Yet, such disclaimers are sometimes required by the Federal Trade Commission. In fact, under the revised regulations published by the FTC in 2009, if anyone other than a company or the brand owner itself advertises or talks about the company's product or service, the FTC requires the disclosure of the relationship between the "talkee" and the "brand," so that potential consumers understand that the recommendation or information contained in the social-media posting could be biased (See generally 16 C.F.R. § 255.)

For example, if an employee decides to blog or tweet about a new company service that recently came into the market (and perhaps even criticize that product), the FTC regulations likely require the employee to identify himself as an employee of the company or risk being in violation of the FTC guidelines.

Indeed, the FTC guidance on "blogging" is very clear that such disclaimers be "clear and conspicuous" (See e.g., 16 C.F.R. § 255.5, which states: "the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.).

But if the employee is critical of the employer's new service, the NLRB says that the employee cannot be required to identify the opinions being posted as his own, thereby leading to a conclusion that the employee's comments are reflective of those of the company and potentially causing harm to the employer's brand, trademark or service.

In situations such as these, the NLRB's guidance seems to be at odds with the FTC's requirements -- resulting in a classic "right hand/left hand" conundrum.

Both NLRB reports stated that policies containing "broad terms that would commonly apply to protected criticisms of the employer's labor policies, treatment of employees, and the terms and conditions of employment" would likely be found in violation of the NLRA.

Similarly, Solomon determined that such sweeping policy language may be considered overbroad where there was no "definition or guidance as to what the employer considered to be private or confidential."

Yet, the NLRB went on to bless at least a portion of an employer's policy that allowed the employer to request employees to "temporarily and/or permanently suspend posted communications if the Employer believed it necessary or advisable to ensure compliance with securities regulations, other laws or [if it was] in the best interests of the Company" (2012 Report).

As a result, Solomon suggested that social-media policies be more narrowly drawn to address, for example, an employer's "legitimate interest in preventing disclosure of certain protected company information to outside parties."

Policy language that was "sufficiently specific in its prohibition against pressuring co-workers [to connect with a co-worker via social media] and clearly applied only to harassing conduct" also likely would pass muster under the NLRA.

Thus, social-media policies that clarify what types of conduct is considered improper (and therefore "clearly unprotected") could be considered a "gold medal" standard. However, in light of the fact that the NLRB has not attempted to fix its own policy, it appears that the NRLB will provide little in the realm of usable guidance on this topic.

So, in an effort to provide some suggestions, the attached list lists examples of the policy language that the NLRB found to be appropriately contained in a social-media policy and that which it did not.

However, it is important to note that each determination was made in the context of a particular factual setting, and any employer considering adopting, maintaining or modifying a social-media policy would be well advised to consult with labor counsel.

With the contours and parameters of social media just beginning to evolve, employers are looking for guidance on issues related to the use, application and pitfalls that accompany the use of social media by employees.

Until further information is available, it remains a good practice for employers to consult with their legal counsel to discuss their social-media-policy language, and the application of that policy to specific employee-discipline issues, particularly before taking any type of disciplinary action that may stem from an employee's social-media use.

Jeffrey Berman (Los Angeles) and Erin Dougherty Foley (Chicago) are partners in Seyfarth Shaw's Labor & Employment Department.

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