By Jessica Mendelson and Robert Milligan

Facebook, Twitter, LinkedIn, Yelp, Foursquare….in today’s modern world, a large and growing number of people are using social media in some capacity. Many employers have some sort of social media policy to regulate the use of social media by their employees. Some simply block social media websites on company assets in the workplace, while others have comprehensive policies that limit the type of information an employee can reveal on these websites at work or at home.

In recent months, employer social media policies have come under fire by the National Labor Relations Board (the “NLRB”), the federal agency which enforces the National Labor Relations Act (the “NLRA”). Under the NLRA, protected employees are given the right to act in conjunction with one another to improve wages and work conditions. The NLRA protects the rights of these employees to engage in concerted activity, and to bring group complaints to the employer’s attention. Protected activities include discussions between employees regarding wages and workplace conditions.

In the past year, the NLRB’s Acting General Counsel (“AGC”), Lafe Solomon, has issued three reports clarifying the NLRB’s stance on social media policies. During that time period, the AGC has found the substantial majority of employer social media policies overly broad and unlawful. Of the twenty policies reviewed in the past three reports, only four were found to be legal under the NLRA.

The most recent operations management memorandum (“OMM”), which was issued on May 30, 2012, highlights the importance of a well-drafted social media policy, and continues to take the position that many employer’s current policies are unlawful. Of the seven company policies cited in the OMM, six were found to be overbroad, and therefore unlawful. The report stresses the importance of careful drafting to avoid any broad language which employees could reasonably construe to prohibit protected activities. Additionally, a disclaimer stating that activities protected under Section 7 of the NLRA are not prohibited is insufficient to cure a defective policy according to the ACG.

Several of the allegedly unlawful specific policies addressed by Solomon’s latest report include:

  • A confidentiality rule that warned employees about sharing confidential information, without specifically identifying categories of non-NLRA protected confidential information.
  • A warning that employees’ online posts should be “completely accurate and not misleading.”
  • A policy that instructed employees to communicate in a “professional tone” without making “objectionable or inflammatory comments.”
  • A restriction on employee contact with the media.

The NLRB’s memorandum has been heavily criticized by legal experts in recent days. According to some experts, the report is contradictory, and fails to make clear what policies would actually violate the NLRA. For example, according to the AGC, a provision prohibiting employees from distributing the employer’s “secret, confidential or attorney-client privilege information” is legal, however, provisions such as “you should never share confidential information” and “don’t release confidential guest, team member, or company information” are not. Are you confused? An additional problem with the NLRB’s “guidance” is that the legality of the policies advocated has never actually been tested by a court of law. Some critics even argue the NLRB’s policies go so far as to constitute agency overreaching.

For employers, the key question arising from these guidelines is how an employer can draft a social media policy which protects confidential, proprietary, and trade secret information, while complying with the NLRA. Employers need to ensure that their policies clearly articulate the business interests of the employer in imposing the restriction, and that such policies are not ambiguous and overreaching. Specific examples of confidential, proprietary, and trade secret information should be provided, and the policy should explain why the restrictions being imposed are necessary and to protect legitimate business interests. The policy should also provide examples of prohibited disclosures. The NLRB did include a social media policy that it approved in its latest report (starting on page 22) but many employers may not find that policy works for its workforce or has the level of detail and bright lines that many would have expected. We will continue to keep you posted on this constantly evolving area.