Is Your Employee Social Media Policy (Still) Lawful?

Employers are probably already familiar with the National Labor Relations Board’s prior rulings that employees’ right to engage in concerted activity protected by Section 7 of the National Labor Relations Act extends to non-unionized as well as unionized workplaces, and to online social networks as well as discussions in person. A decision by the National Labor Relations Board earlier this year, Triple Play Sports Bar & Grille, further clarifies employees’ right to discuss their working conditions in social media. According to the Board, “liking” a comment on Facebook, without more, can qualify as protected activity. Triple Play also cautions against policies  prohibiting “inappropriate discussions” on social media, regardless of how the policy is enforced, under the Board’s long-standing view that ambiguous or clumsily phrased work rules, by themselves, may unlawfully intimidate employees into avoiding concerted activity. In light of this decision, employers may wish to review their social media policies to ensure continuing compliance.

The case arose from a discussion among non-unionized employees on Facebook about their employer’s tax withholding practices. Dismayed to learn that she owed more in state taxes than expected, one person posted the comment that “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money …Wtf!!!!” An exchange of comments on the site ensued. Vincent Spinella, then an employee,  “liked” the original remark. Jillian Sanzone, another employee, responded, “I owe too. Such an asshole,” referring to the restaurant’s owner. Several days later, the restaurant learned about these exchanges and discharged Spinella and Sanzone for their “disloyalty” to the employer.

A “Like” Can be Protected, Concerted Activity 

The Board held that Spinella’s  “liking” the original status update was protected, concerted activity, as were the other Facebook comments, because they involved current employees participating in an ongoing discussion about taxes withheld from their compensation. “Liking” another’s post, the Board found, was an expression of support for those participating in the discussion, and therefore amounted to protected activity in its own right.

Social Media Policies

Triple Play is also informative because of its discussion of unlawful restrictions in employer social media policies. As our readers know, the NLRA has been held to prohibit any employer rule that would reasonably tend to chill employees in the exercise of their concerted activity. A rule that does not expressly restrict Section 7 activity, may still be unlawful if employees would reasonably read it to prohibit concerted activity, if the rule was announced in response to union activity, or if the rule has been applied to restrict protected activity.  Most reported cases and opinions involve the first alternative, where the text of the policy may be open to misinterpretation.

In Triple Play, the employer maintained the following social media policy:

[W]hen internet blogging, chat room discussions, email, text messages, or other forms of communication extend to employees revealing confidential or proprietary information about the Company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.

The Board held that the portion of the rule prohibiting “inappropriate discussions about the company” was unlawfully imprecise and overbroad because employees would reasonably construe the rule to prohibit protected activity. In particular, the policy offered no definition or examples of “inappropriate discussions about the company” that would help employees understand the parameters of the rule. As a result, employees could reasonably interpret the rule to prohibit conversation about the terms and conditions of employment that their employer disliked, even though such conversations are protected under Section 7.  Indeed, given that Spinella and Sanzone were discharged for “disloyalty,” it appears that such a reading would have been accurate.  In any event, if they read the policy, it did not deter them from engaging in protected activity, and the Board found a violation.

Employers will recognize the following as a few examples of prohibitions in social media policies that the Board has found unlawful in other cases:

• Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.

• Employees may not disclose sensitive, proprietary, confidential, or financial information about [the employer], its customers, clients, parents, subsidiaries, or affiliates.

• Do not comment on rumors, speculation or personnel matters; do not comment on rumors or speculation related to the Company’s business plan.

Confusion and rapidly changing requirements in this area of the law may discourage some employers from implementing social media policies altogether, but in many cases they will be worth the effort.  Although many existing employer policies – such as those prohibiting discrimination or harassment, or protecting he confidentiality of patient medical records, – can, depending on their drafting, be applied to social media activity without little or no tinkering, some concerns unique to social media may not be adequately addressed by existing policies.  For example, managers, supervisors, and executives are often in a position to inflict considerable harm on a company’s reputation or business ties through careless social media activity, and such individuals are not protected under the NLRA.  Many employers also decide to adopt social media policies in part to protect trademarks and intellectual property or to address concerns about employees who may be perceived to speak on the company’s behalf without authorization.

Conclusion

In light of Triple Play, employers would be prudent to consider the following precautions:

• You may wish to consult with an attorney before taking action against an employee for inappropriate conduct on social media; the law in this area changes frequently. Triple Play itself is currently on appeal before the U.S. Court of Appeals for the Second Circuit, whose opinion may further develop the law on this subject.

• Because having an improperly drafted social media policy on the books may itself constitute an unfair labor practice, employers should review such policies at least annually to ensure continued compliance.

Amanda M. Baker, an associate with the Firm, assisted in the preparation of this article.