A Tough Balancing Act for Employers

Failure to recognize and effectively deal with the reality of social networking can spell a recipe for disaster for any organization. The trick is to prepare and implement a policy in a legally compliant way that fits the employer's business and culture.

Thursday, February 7, 2013
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While some employers previously may have viewed Facebook and Twitter as part of a new and, perhaps, irritating "trend" that would eventually go away, social media's continued growth has made clear that social networking sites are here to stay. Employers have responded in various ways. Some continue to turn a blind eye to the existence of social networking in the workplace. Others have attempted to implement blanket bans against accessing and posting on social networking sites from work. Others still have come around to recognizing the inevitable reality of the social networking phenomenon, and have attempted to deal with that reality through policies and practices designed to address employees' social networking activities.

Social-Networking Sites Can No Longer Be Ignored.

If there used to be any doubt about whether employers should even bother to address social networking in the workplace, such doubt should be dispelled by now. Over the past few years, social-networking sites have become more prevalent than ever. In October 2012, Facebook reported reaching 1 billion users; Twitter currently boasts over 500 million active users, who generate over 340 million tweets daily; and the LinkedIn site reports a membership of over 175 million. Combine these telling statistics with the fact that employees in this country tend to spend most of their waking life working, and an employer can be sure that, in one way or another, work has made its way into its employees' social networking.

In this day and age, failure to recognize and effectively deal with the reality of social networking can spell a recipe for disaster. Thus, an employer would be well-served to have either a stand-alone social media policy or, at a minimum, a social media component in its general systems usage and monitoring policy, explaining what employers may and what they may not post relating to work on social networking sites. The trick, however, is to prepare and implement this policy in a legally compliant way that fits the employer's business and culture.

Social-Media Policies: The NLRB's Take.

Some of the first employers to tackle the social media phenomenon by implementing seemingly reasonable policies and practices, unfortunately, attracted unwelcome attention from the National Labor Relations Board, which has emerged as the unlikely lead player in shaping the law within the social media realm. As part of its apparent efforts to stay relevant in the age of changing technologies and ever-dwindling unionization, the NLRB recently issued a number of decisions addressing employer social media policies, and, specifically, what such policies can and cannot provide. In these decisions, the Board has held that otherwise reasonable, well-written and well-intentioned policies may violate the law if they can be interpreted as interfering with employees' right to discuss their terms and conditions of work, including by criticizing management.

The NLRB has based its analyses of employers' social media policies on the National Labor Relations Act. Section 7 of that Act gives all employees, both in unionized and in non-union work settings, the legal right to engage in concerted activities - i.e., to discuss and otherwise interact with one another regarding, among other things, their various terms and conditions of work. According to the NLRB, an employer policy or practice will be deemed in violation of the Act if, as applied or enforced, it prohibits, interferes with or even tends to have a chilling effect on such "Section 7 activities."  In a series of recent decisions targeted specifically at various employers' social media policies, the NLRB has applied this reasoning to hold a number of these policies to be in violation of the National Labor Relations Act.  

A.         Costco Wholesale Corp.

 The NLRB's first decision on social media, Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012), considered an employer policy that prohibited employees from posting "defamatory" or "damaging" statements about the Company on social networking sites. Specifically, Costco's "Electronic Communications and Technology Policy" stated:  "Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual or damage any person's reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment." 

The NLRB held that employees could reasonably construe Costco's policy to prohibit Section 7 activities, on reasoning that the policy's broad prohibition against any statements that "damage the Company" or "damage any person's reputation" could include employees' statements that may protest Costco's treatment of employees. Accordingly, the NLRB held that Costco's social media policy violated the NLRA.

B.         Knauz BMW

Shortly after Coscto Wholesale Corp., the NLRB issued its second social media decision:  Knauz BMW, 358 NLRB No. 164 (Sept. 28, 2012). Not unlike Costco Wholesale Corp.'s policy in question, Knauz BMW maintained a "courtesy" rule in its employee handbook stating:  "Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership." 

The NLRB found this "courtesy" rule to be unlawful on the grounds that employees could reasonably construe it as encompassing employees' protected communications, including criticism of working conditions. Had the Company only encouraged employees to be courteous, the rule would have been deemed lawful, reasoned the NLRB. But since the rule went beyond "the positive aspirational language of the first section" to proscribe messages and communications potentially critical of the Company, the NLRB required the rule's rescission, along with a notice posting that the Company violated the NLRA and reminding employees of their rights to organize and engage in protected communications about terms and conditions of their employment.

C.         DISH Network Corp.

Another well-known company, another controversial decision from the NLRB. On November 14, 2012, an NLRB administrative law judge struck down DISH Network's social media policy, which provided:  "You may not make disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services. ... Unless you are specifically authorized to do so, you may not participate in these activities with DISH Network resources and/or on Company time ..." See DISH Network Corp., Case Nos. 16-CA-62433, 16-CA-66142, 16-CA 68261 (Nov. 14, 2012). Consistent with the NLRB's decisions in Costco Wholesale Corp. and Knauz BMW, the administrative law judge in DISH Network Corp. reasoned that the policy's prohibitions against "disparaging or defamatory comments" and the ban of any social media discussions, including on "Company time," could be reasonably interpreted by employees to interfere with or prohibit their Section 7 activities.

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Practical Tips:  What Employers Should Do to Minimize Legal Exposure.

While these recent NLRB decisions certainly tilt the balance heavily in favor of employees, they are not devoid of legal logic. Even an untrained eye can see the key words in a social media policy that are likely to send off "red flags" to the NLRB, and that any ambiguity in a policy is likely to be viewed in a light favoring the employees and from the perspective of whether the policy might be viewed as negatively impacting employees' Section 7 rights under the National Labor Standards Act. Although the line between legally compliant and unlawful policies has become a fine and somewhat blurry one, a prudent employer advised by good legal counsel should be able to grasp onto the NLRB's string of thought, and discern the appropriate social media policy provisions that both fit the individual needs of its workplace and would likely be deemed legally compliant.

In parting, consider these Top-3 Tips on addressing social networking in the workplace:

1.         Decide on a working approach. Before you begin drafting a social media policy, take some time to consider your overall approach. Think about your employees and your company culture, and your concerns and goals relative to employees' use of social networking sites. For example, a large manufacturing company located in a rural area will likely have a very different social media policy from an office environment in the city that boasts company-sponsored Facebook and/or Twitter accounts.

2.         Implement the right policy. Once you have determined your workplace's individual approach to social networking, you are ready to put pen to paper. Given the recent activity from the NLRB, however, it is best to work with good legal counsel to ensure that the policy not only reflects the needs and culture of your workplace, but includes the appropriate provisions - including, among others, as to your ownership of electronic systems and monitoring practices, appropriate incorporation and application of other workplace policies, protections for the company's confidential information and a disciplinary component - that are likely to be deemed lawful and enforceable.

3.         Be smart in dealing with policy infractions. Last but not least, approach social networking infractions and/or policy violations thoughtfully and on their own facts, avoiding any knee-jerk reactions. Many issues with social networking in the workplace arise when an upset employee makes a seemingly inappropriate post, and an employer reacts rashly with disciplinary action. It is best to investigate any issues promptly or thoroughly and think through the best, legally compliant next steps.  

Sonya Rosenberg is an attorney with Neal Gerber Eisenberg in Chicago where she counsels and represents employers in various labor and employment-related matters. She has authored multiple articles on various employment-related topics, including discrimination, blogging in the workplace, social networking sites, workplace violence, and notable changes and developments in labor and employment law.

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