By Robert Milligan and Jeffrey Oh

Over the past decade, no avenue has had a bigger impact on society and the ways in which people interact than social media. Websites like Facebook, Twitter, LinkedIn, which traffic in information shared on its servers, encourage users to publish every detail of their lives. For employers, the reality of social media’s pervasiveness (and benefits) presents unique challenges in maintaining the integrity of trade secrets and confidential information accessible to employees. While it is always important to err on the side of caution in crafting effective social media policies for the workplace, employers must be aware of their legal limitations in setting parameters for appropriate use. To avoid the ire of the National Labor Relations Board (NLRB), companies must align their policies with the National Labor Relations Act (NLRA). In connection with the same, the Office of the General Counsel for the NLRB has recently issued its interpretation of how the Act applies to social media. Companies that rely on trade secrets and confidential information need to listen and make sure that their social media policies are compliant with the NLRA or risk that their valuable information is exposed and liability under the NLRA.

Passed in 1935, the NLRA is a federal law designed to protect employees’ rights to organize unions, labor strikes, or engage in collective bargaining. In practice, the Act allows workers to freely discuss issues ranging from the terms and conditions of employment to complaints of unfair treatment. Relating to social media, this protection allows employees to author public posts about a company or their workplace so long as it can be construed as a discussion with fellow employees and a potential first step towards self-organizing. With respect to this protection, it does not matter whether the employer is a union shop as these protections apply to non-union employers as well.

In a recent operations management memo issued by Lafe Solomon, the Acting General Counsel for the NLRB, an analysis of recent cases related to social networking in the workplace found that a majority of employers had applied overly broad policies that did not adhere to the provisions of the NLRA. These cases were largely related to the terminations of employees who had authored some sort of work-related post on Facebook. Although employers have both a duty and the right to take action against employees who misappropriate company information online, in light of the NLRB’s interpretation of these cases, companies should revisit their social media policies and ensure that they offer maximum protection without opening themselves up to future litigation. In particular, employers should be aware of what sorts of topics are protected by the NLRA – even on a very public forum such as Facebook.

According to the NLRB, the report underscores two main points made in an earlier compilation of cases:

  1. Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  2. An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The report provides several examples of social media policies that run afoul of the NLRA and those that do not. The NLRB report concluded that the policy described below was not overly broad and, therefore, was lawful:

“The employer’s social media policy provided that the employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws. It prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media ‘embargoed information,’ such as launch and release dates and pending reorganizations.”

According to the NLRB’s interpretation of recent cases, the potential scope of protected employee-discussion is fairly large. Examples of speech protected by the NLRA include accusations of sexism in the workplace, departmental complaints, complaints about orders or instructions perceived to be unfair and other labor disputes. In each of these cases, the NLRB found location (a forum including fellow employees) and context (relating to terms and conditions of employment) to be the standard for what is, and is not permissible. 

For companies worried about trade secret protection and keeping sensitive information confidential, the broad nature of the NLRA can seem like a severe handicap in their efforts to prevent all forms of misappropriation. Dealing with the possibility that an employee could, for example, complain online about having to travel to a distant location for an upcoming project, only to inadvertently disclose a business strategy the company had otherwise gone to great lengths to keep confidential, is a nightmare scenario that is all too likely in the information age. Fortunately, the NLRB has clarified what it views as permissible social media policy in regards to this issue. Recently, a company expanded a policy asking employees to abide by securities regulations in relation to discussing the company on social networking sites to include “embargoed information” that it deemed confidential. Although this policy could be seen as trying to restrict actions protected under the NLRA, the NLRB ruled that the employees would reasonably interpret to the policy to apply only to communications that might implicate security regulations.

In addition, they ruled that since employees do not have a protected right to disclose embargoed information such as trade secrets or confidential information, the employees would not reasonably interpret the rule to disallow communications about the terms and conditions of their employment. While this may not be the clearest, bright-line rule, it at least acknowledges that the NLRB acknowledges an employer’s right to protect its trade secrets and confidential information.

Maintaining an up-to-date social media policy should be a high priority for any company. As social media continues to evolve in its effects on society and modern communication, it is critical that employers educate their employees on what is, and is not permissible social media use with regards to company information. Actual meaningful training is essential rather than hiding the social media policy in a stack of new hire paperwork. Eliminating any ambiguities that may remain from outdated policies can serve to offer future protection against the misappropriation of trade secrets or confidential information online, no matter what the social media service of choice may be for the particular company. Employers should focus on legitimate business interests in articulating their written policies and conveying their policies to employees. Clearly defining the parameters of what is off limits or embargoed for discussion in social media is the most effective way to protect a company from misappropriation while steering clear of overly broad policy applications that may be deemed unlawful by the NLRB. Depending upon the industry, social media policies may also want to address the ownership of content in social media accountsused to generate business for the employer. Competent legal counsel should be consulted to create and/or update appropriate social media policies.