Tag Archives: twitter

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. . .

Lawful Social Media Policies vs. Unlawful Social Media Policies – The NLRB Weighs In (And Yes, Even the NLRB Tweets!)

Contributed by Carly Zuba

In today’s technologically savvy age, more and more disgruntled employees are turning to Twitter, Facebook, blogs, and other social media outlets to air their grievances about their employers.  The National Labor Relations Board (NLRB) has taken note and recently issued a report to provide guidance to employers, employees, and unions regarding social media policies.  The Board, which currently boasts an impressive 3,092 followers on Twitter, even tweeted about the report on January 25, 2012.

The report summarizes 14 recent social media cases, with half of the cases touching on questions concerning employer social media policies.  Not surprisingly, most of the social media policies that the NLRB reviewed were found to be overly broad.  Because of this, it is crucial for employers to ensure that their social media policies are not so broad that they chill an employee’s right to engage in protected activity. 

In the eyes of the NLRB, the following are examples of unlawful social media policy:

  • Employees may not post “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.”
  • Employees may not post “disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
  • “Employees should generally avoid identifying themselves as the employer’s employees unless discussing terms and conditions of employment in an appropriate manner.”

Why did the Board decide these policies were unlawful?  Because employees have the right to engage in protected concerted complaints regarding employer policies and the treatment of employees, even if that speech is defamatory, and the Board found the above policies to stifle such protected concerted activity.

So, what type of language does the NLRB consider lawful?  The NLRB upheld the following social media policy:

  • Employees are prohibited from using social media to “post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

The above policy was found to be lawful because the Board felt it would not be reasonably understood to restrict legal concerted activity.

While the NLRB’s report teaches us that employers should not be implementing overly broad social media policies, it is always good practice for employers to have their social media policies reviewed by an experienced labor and employment attorney.

NLRB & Social Media: Where Do We Stand For Now?

Contributed by Beverly Alfon

Employers have been struggling with how the National Labor Relations Board’s (NLRB) traditional principles for determining whether employees are engaged in “protected, concerted activity” apply to employees’ social networking activities and their employers’ social networking policies.  In August, the NLRB Acting General Counsel issued a report presenting summaries of recent case developments arising in the context of employees’ use of social media.  All of the cases in the report were based upon requests for advice from regional directors.

Of the cases detailed in its report, the NLRB’s Division of Advice found:

  • Four cases involved Facebook or Twitter posts that constituted “protected concerted activity”
  • Five cases involved social media use that did not warrant National Labor Relations Act protection
  • Five cases dealt with employer social media policies that were found to be overbroad
  • One case concerned an employer’s policy that was held to be valid
  • One case involved a union’s use of YouTube that was determined to be unlawful coercive activity.

Although the division’s “findings” are not binding on either administrative law judges or the NLRB itself, they do provide some guidance. An employee’s use of social media is likely to be considered protected concerted activity if the posts:

  1. Involve the terms and conditions of employment
  2. Constitute an “outgrowth” of an earlier discussion about the terms and conditions of work among co-workers
  3. Involve or are directed to fellow co-workers to invite or induce further action.

An employee’s Facebook or Twitter posts are more likely to constitute protected activity if they involve topics like job performance, staffing levels, protests of supervisory actions, criticisms of an employer’s promotional event that employees believed would negatively impact their sales commission, and shared concerns about income tax withholdings.

Posted complaints about working conditions to non-coworkers are less likely to be found protected by the National Labor Relations Act (NLRA).  Similarly, an employee’s complaints over his or her individual situation are less likely to be deemed as “inducing group action” and are therefore less likely to be protected.  Offensive or inappropriate comments directed at an employer’s clients are less likely to receive NLRA protection.

Social media policies that are narrowly focused are likely to be considered lawful. The decisions indicate that policies which prohibit employees from making disparaging comments about the company or the employee’s superiors, co-workers, or competitors and further prohibit the use of inappropriate or offensive language or action to a client or co-worker which should contain language informing employees that these provisions do not apply to Section 7 activity.

Ultimately, despite the growing number of these social media cases and recent guidance, there are currently no binding decisions on this subject.  The analysis of these situations remains fact-intensive and must be treated on a case-by-case basis.  Employers must continue to be vigilant in ensuring that their policies and practices fall within the evolving parameters of the law.