The Internet Police Have Arrived

Contributed by Terry Fox

While Al Gore may, or may not, have invented the Internet, there has not been any central enforcement body to regulate manners, civility, or professionalism in individual Internet discourse . . . until now. It appears that “regulation” is a misnomer because, in actuality, it is more like de-evolution.  Having read the National Labor Relations Board’s Acting Associate General Counsel’s Report Concerning Social Media Cases released May 30, 2012, I am picturing the NLRB management sitting around wearing red plastic flower pots as hats like the early punk band DEVO as they concoct ways to “whip it into shape” on the world-wide web by gutting employers’ social media policies. These rules and pronouncements govern employee’s postings on social media like Facebook, MySpace, and Twitter.

A rule advising employees not to “release confidential guest, team member or company information” is illegal under Section 7 of the National Labor Relations Act, says the NLRB, because employees would construe this rule to prohibit them from discussing the wages and conditions of employment for themselves and others.  This rule is taken from Target Corporation’s social media policy.  The Acting General Counsel report also took issue with a section of Target’s policy addressing confidential information.  Its rule that employees not discuss confidential information of other employees in break rooms or other open areas, in public or at home was deemed unlawful because it would be [not had been] construed by employees to preclude discussion of terms and conditions of employment.

General Motors’ social media policy fared no better.  GM’s policy section requiring posts to be “completely accurate and not misleading” was found overbroad because only maliciously false information lies outside Section 7 of the NLRA.  The admonition for employees unsure of a post’s propriety to check with the company’s corporate communication or legal departments prior to posting is also illegal in the NLRB’s view. 

Most surprising is the trashing of GM’s rules of civility – “treat everyone with respect” – by the NLRB.  “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.” What’s the problem with that rule?  “[T]his provision proscribes a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees.”

Privacy gets no respect from the NLRB.  In reviewing McKeeson Corporation’s social media policy, the Board took issue with the provision titled “Respect Privacy.”  McKeeson’s business is to support patient billings for the health care industry.  The “offensive” clause stated “[i]f during the course of your work you create, receive or become aware of personal information about [Employer’s] employees, contingent workers, customers, customer’s patients, providers, business partners or third parties, don’t disclose that information in any way via social media or other online activities.”  Unlawful, said the NLRB, because it would preclude employees from discussing wages and working conditions. 

As shocking as it is that the federal government is enticing employees to talk smack about each other online, the safe haven for employers is uncharted.  Most current social media policies contain a so-called “savings clause.”  Those provisions generally state that the policy is not intended or to be applied to preclude lawful activities under the law, or specifically Section 7 of the NLRA.  A “savings” clause is of no value because it will not save an otherwise unlawful policy because employees would not understand from a disclaimer that protected activities are in fact permitted. 

The Acting General Counsel report trashes the social media policies of other for-profit and nonprofit organizations.  The report does give a pass to Walmart’s revised policies (as of 5/4/12), and provides them as an attachment.  Employers are commended to read the report and strongly encouraged to have trained legal counsel review social media policies.  There appears to be a fair degree of nuance to this, as shown by the report when read in its entirety. What the NLRB appears to be striving for are express carve-outs encouraging employees to discuss wage and working condition issues.  If that is required, it is not clear if having a social media policy is beneficial.  Walmart’s policies, however, find a balance without providing overt encouragement through examples. 

This is an area of rapidly changing laws, rules, and expectations.  The May 30th  report is the third report in less than a year.  Expect more mayhem. . .