There is no protection for employees who post comments about employees on facebook or blogs.

Dear Rita:

The recent demonstrations around the country have been of considerable interest to our nonprofit’s staff. We encourage open discussions of the issues, and most of the discussions have been courteous and respectful of everyone’s views. One of our employees, who was rather quiet during these conversations, was asked what he thought about these issues and he just said, “Check out my Facebook page.”

When someone did check it out, they were horrified to see several racist images and profanity-laced references to protesters. On his Facebook page, the employee made no secret of the fact that he was one of our employees. One of our community partners called us to object to this post and asked us what we are going to do about it.

So now we ask, what can we do about this?

Sincerely,

Intolerant of Intolerance

Dear Intolerant,

You are experiencing an issue many employers are having to resolve, given the recent protests and demonstrations over race relations and policing in the United States. As you might expect, many people have taken to their social media accounts and made their thoughts about these events known to their viewing audience. The tone of these posts have run the gamut from thoughtful and reasonable to outright offensive, abusive, and hateful.

Employers of the individuals who post their views have an understandable interest in what these posts say, especially if an employee’s post creates the impression that these views are shared by the employer.

In the last several weeks, there have been several high-profile and immediate firings for expressions that were not “reasonable or thoughtful” but that clearly crossed over instead into hate speech.

Here are just a few examples:

• An employee of NBC who had worked on several police-themed shows was fired for a Facebook post captioned “Curfew…” in which he’s shown holding a rifle on his front porch and another post full of expletives in which he threatens to shoot looters who come near his home.
• A longtime announcer for the Sacramento Kings was fired from his talk radio job, and he subsequently resigned from the team’s broadcast crew after tweeting, among other things, “ALL LIVES MATTER.”
• The principal trombonist from the Austin Symphony Orchestra was let go after a string of Facebook comments, including one in which she said Black protesters “deserve what they get.”
• Fender Musical Instruments summarily fired a longtime employee and master guitar builder for allegedly posting a very graphic and offensive image about “how to handle protesters.”

Regardless of where in the tangle of issues a particular employer falls, such expressions of hate and intolerance are inconsistent with most employers’ zero-tolerance policies that require employees to treat everyone with dignity and respect. In these situations, the terminations were appropriate and well-justified. However, when confronted with objectionable comments posted by employees, employers should carefully take stock of the situation before taking action.

Does the First Amendment Protect Such Conduct?

While most of us are aware that the First Amendment of the United States Constitution provides broad protection of a person’s right to express themselves about public affairs, it is important to understand that First Amendment protection applies only to government interference with this right of free speech and expression.

The terminations conducted by the private employers described above would, therefore, not violate the First Amendment rights of those employees.

Other Risks to Consider in Disciplining Employees for Hate Speech Postings

Although not bound by the First Amendment, employers do face other restrictions. It is important to understand these before taking action against employees posting objectionable content on social media:

• Posting (even negatively) about work conditions is protected. The National Labor Relations Board (NLRB) has ruled that employees have a right to use social media to communicate with other employees about employment-related matters, including the terms and conditions of their employment. This ruling applies to employees of both union and non-union employers. This is a broad protection of speech or other expression about the employer or employment conditions, even if profane or “over the top.” However, if the communication does not involve the employer or the conditions of employment, and if it is hate speech, the employer may well be able to respond with disciplinary action.
• Some political postings are protected. Some states do place statutory limits on how far employers can curtail the right of political speech on social media or otherwise. For example, California Labor Code section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that forbids or controls, or tends to control, the political activities of their employees. What constitutes “political activity” is defined broadly and can include, for example, displaying campaign stickers, wearing armbands, advocating for union membership, or criticizing public officials. As a result, an employer’s actions in dealing with social media postings do present risk. However, the more egregiously inflammatory or abusive the posting, the more likely it goes beyond the protected realm of “political activity,” and so the employer can deal with the employee more decisively.
• Employees are protected against wrongful termination in violation of public policy. Along the same lines, many states have held that employers may not terminate an employee for a range of protected behavior, such as exercising a legal right or privilege or refusing to break the law. These states also hold that the public policy alleged to be violated must be based on either a statutory or a constitutional provision. There is the risk, then, that an employee fired in violation of their constitutional or statutory rights to free speech or political activity might be able to bring suit claiming that the termination was in violation of public policy.
• Off-duty conduct may also be protected. Many states also limit the ability of employers to take action against an employee for off-duty conduct. If the employee’s post either does not identify the employer or creates no impression of endorsement of the post by the employer, there might be a greater risk to the employer for taking disciplinary action if the employee posted on their own free time, while not working. Of course, if the offensive posting is made on the employer’s social media platform, the employer’s response can be more forceful.

Making the Decision Easier: Maintain a Clear and Detailed Social Media Policy

As with many workplace decisions, having a clear, detailed, and strongly-worded policy (here is a sample) will assist the employer in dealing an employee’s abusive and offensive social media, should such circumstances arise.

At a minimum, a solid social media policy should include:

• A statement that the policy does not intend to interfere with a person’s rights under the NLRB
• Restrictions on posting harassing and discriminatory content, and other material of a clear and overt offensive nature
• The requirement that employees express only their own individual opinions or views, never implying that these views reflect the views of the employer
• A prohibition against any employee linking their social media account to the employer’s social media accounts
• Clearly spelled-out consequences for violating the social media policy

In summary, it is important to remember that an employer should never take action against employees who express or post points of view that simply differ from the views of the supervisor, management, or the board of directors. However, when those posted viewpoints cross over into undeniable expressions of hate, bigotry, and intolerance, or encourage violence against anyone, any action the employer takes to deter and prevent those and future such expressions should be recognized as essential to the cultivation of values consistent with a sound and healthy workplace culture.

This column does not constitute legal advice.

1.     Protection of “Concerted Activity”

The National Labor Relations Act (NLRA)[1] protects the rights of employees to act together to address conditions at work, with or without a union.  Thus, employers without unions are subject to the NLRA.  An employer’s failure to comply may result in charges of unfair labor practices for policies, litigation before the National Labor Relations Board (NLRB) and in the federal courts, and the undoing of discipline based on the non-compliant policy (including reinstatement of discharged employees with backpay).

Section 7[2] of the NLRA provides the basic protection for employees acting together (and for which the employees may not be disciplined).  Section 7 provides:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Emphasis added.

This protection of concerted activities extends to certain, but not all, work-related conversations between employees, including those conducted on social media, such as Facebook, Twitter, Pinterest, Snap Chat, and similar social media websites.

In addition, Section 7 protection extends to “communications to the public that are part of and related to an ongoing labor dispute.”[3]  Such protected communications include Facebook posts about group concerns which have been raised with the employer.  However, merely posting employee complaints to social media sites does not automatically give such postings protected status.  An employee’s personal and individual gripes or expressions of frustration with working conditions will likely not be considered as protected activity.  [4]

As a general rule, to be protected, an employee’s posts must:

• Relate to terms and conditions of employment; or
• Seek to initiate or induce group action; or
• Intend or expect that third parties will take action affecting the employment situation.

This general rule comes from the definition of “concerted action” contained in the Meyers Industries case and guidance from the General Counsel of the NLRB.

2.     Definition of “Concerted Activity”

a.      Meyers Industries.

In a 1986 decision, Meyers Industries[5], the National Labor Relations Board (Board), found activity to be “concerted” if the conduct is “engaged in with or on authority of other employees, and not solely by or on behalf of the employee himself.”[6]

The Board defined “concerted activities” as:

encompass[ing] those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.

Emphasis added.

b.      Balance against employer’s needs (legitimate interests)

Under NLRB decisions, the right of employees to engage in “concerted activities” is balanced against legitimate employer rights which include the employer’s property rights and the need for workplace order and discipline, which have long been recognized by the NLRB.[7]

c.       Facial challenges

Other decisions have determined that policies can be (facially) challenged under section 7 even before the employer attempts to enforce the policy.[8]  In other words, an overbroad policy, even without enforcement action through employee discipline, can result in a charge and a finding of an unfair labor practice.

1)     Lutheran Heritage Village – Livonia[9].

In 2004, the Board set out the current analysis it uses at this time to determine if a policy is overbroad and unlawfully restrictive of section 7 protected concerted activities:

Our inquiry into whether the maintenance of a challenged rule is unlawful begins with the issue of whether the rule explicitly restricts activities protected by Section 7.  If it does, we will find the rule unlawful.  If the rule does not explicitly restrict activity restricted by Section 7m the violation is dependent upon a showing of one of the following: (1) employees could reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

3.     NLRB Scrutiny of Social Media Policies

In 2010, the National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, began receiving charges of unfair labor practices in its regional offices related to employer social media policies and to specific instances of discipline for Facebook postings. Following investigations, the agency found reasonable cause to believe that some policies and disciplinary actions violated federal labor law, and the NLRB Office of General Counsel issued complaints against employers alleging unlawful conduct. In other cases, investigations found that the communications were not protected and so disciplinary actions did not violate the Act. [10]

4.     NLRB General Counsel Guidance

To date,[11] the Acting General Counsel has issued three (3) extensive memoranda (August 18, 2011, January 25, 2012 and May 30, 2012) outlining when social media policies are unlawful and when they are not.[12]  The third memorandum contains a social media policy which the General Counsel found to be lawful (and which can form the foundation of a well crafted social media policy).

The NLRB website provides this synopsis of the guidance provided by its General Counsel:

The first report, issued on August 18, 2011, described 14 cases. In four cases involving employees’ use of Facebook, the Office of General Counsel found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the activity was found to be unprotected. In one case, it was determined that a union engaged in unlawful coercive conduct when it videotaped interviews with employees at a nonunion jobsite about their immigration status and posted an edited version on YouTube and the Local Union’s Facebook page. In five cases, some provisions of employers’ social media policies were found to be overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

The second report, issued Jan 25, 2012, also looked at 14 cases, half of which involved questions about employer policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised. The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related. The report underscored two main points regarding the NLRB and social media:

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.

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 third report, issued May 30, 2012, examined seven employer policies governing the use of social media by employees. In six cases, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful and others to be unlawful. In the seventh case, the entire policy was found to be lawful. Provisions were found to be unlawful when they interfered with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.

More recently, on March 18, 2015, General Counsel issued a Memorandum analyzing employer rules for compliance or non-compliance with Section 7.[13]  This Memorandum provides additional guidance to employers in crafting social media rules that will not violate Section 7 rights.  Analyzed were rules that pertained to:

• Confidentiality;
• Employee conduct toward employer;
• Conduct toward fellow employees;
• Third-party communications;
• Use of company logos and trademarks;
• Photography and recording;
• Restrictions against employees leaving work; and
• Conflicts of Interest.

Each of these subjects should be reviewed when crafting a new policy for employee social media use.

B.    To What Extent May Employers Limit Social Media Use?

As indicated above, an employer has legitimate interests that must be balanced against its employees’ Section 7 rights to engage in “protected concerted action.”  These employer rights include, but are not necessarily limited to, property rights and the right to maintain good order and discipline in the workplace.  These employer rights of confidentiality and discipline, however, may not preclude or unduly restrict employees’ Section 7 protected concerted activities

As a general rule[14],

1. A policy that uses all inclusive terms, such as “all” and “none” will generally run afoul of the NLRB’s interpretation of “protected concerted activity;”
2. A policy or rule that prohibits, , expressly or by implication, social media discussion  of wages, hours and other terms and conditions of employment will be found to be unlawful;
3. A rule that broadly prohibits social media discussion of management would be unlawful; however, a rule that requires employees to be respectful to customers, competitors, and other fellow employees would be lawful.[15]
4. A rule that broadly prohibits the posting of all “disparaging” comments would be unlawful; but a rule that prohibits disparaging postings that interfere with the employee’s own work or that of other employees or that interferes with the employer’s operations could be legal if discipline was limited to the interference, rather than the posting itself.
5. A rule that prevents personal “griping” solely by or on behalf of the employee himself, about work conditions could be lawful if carefully crafted;
6. A rule limiting all social media postings during work time (other than rest and lunch breaks or nonwork time) could be lawful if all social media postings during work time were prohibited, but not if such a rule was in response to unionization efforts or to limit discussions of work conditions and not other subjects;
7. A rule limiting who can make statements to the media on behalf of the company would be legal, but a policy that prohibited all contact with the media about employment with the employer would not.

It is helpful for the legal practitioner to review guidance from NLRB’s General Counsel and use the language which has been found to be unlawful and lawful with regard to restrictions on employees.  As confidentiality rules and rules regulating conduct towards the employer will likely be most important to employers, the recent (March 18, 2015) NLRB General Counsel guidance is set forth below verbatim.  The guidance will also indicate how the NLRB is likely to analyze any employer restriction on social media.

Confidentiality.

Unlawful Confidentiality Rules

We found the following rules to be unlawful because they restrict disclosure of employee information and therefore are unlawfully overbroad:

• Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”

In the above rule, in addition to the overbroad reference to “employee information,” the blanket ban on discussing employee contact information, without regard for how employees obtain that information, is also facially unlawful.

• “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy).”

Although this rule’s restriction on disclosing information about “other associates” is not a blanket ban, it is nonetheless unlawfully overbroad because a reasonable employee would not understand how the employer determines what constitutes a “lawful Company policy.

• “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”

While an employer may clearly ban disclosure of its own confidential information, a broad reference to “another’s” information, without further clarification, as in the above rule, would reasonably be interpreted to include other employees’ wages and other terms and conditions of employment.

We determined that the following confidentiality rules were facially unlawful, even though they did not explicitly reference terms and conditions of employment or employee information, because the rules contained broad restrictions and did not clarify, in express language or contextually, that they did not restrict Section 7 communications:

• Prohibiting employees from “[d]isclosing … details about the [Employer].”
• “Sharing of [overheard conversations at the work site] with your coworkers, the public, or anyone outside of your immediate work group is strictly prohibited.”
• “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places.”
• “[I]f something is not public information, you must not share it.”

Because the rule directly above bans discussion of all non-public information, we concluded that employees would reasonably understand it to encompass such nonpublic information as employee wages, benefits, and other terms and conditions of employment.

• Confidential Information is: “All information in which its [sic] loss, undue use or unauthorized disclosure could adversely affect the [Employer’s] interests, image and reputation or compromise personal and private information of its members.”

Employees not only have a Section 7 right to protest their wages and working conditions, but also have a right to share information in support of those complaints. This rule would reasonably lead employees to believe that they cannot disclose that kind of information because it might adversely affect the employer’s interest, image, or reputation.

Lawful Confidentiality Rules

We concluded that the following rules that prohibit disclosure of confidential information were facially lawful because: 1) they do not reference information regarding employees or employee terms and conditions of employment, 2) although they use the general term “confidential,” they do not define it in an overbroad manner, and 3) they do not otherwise contain language that would reasonably be construed to prohibit Section 7 communications:

• No unauthorized disclosure of “business ‘secrets’ or other confidential information.”
• “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
• “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”

Finally, even when a confidentiality policy contains overly broad language, the rule will be found lawful if, when viewed in context, employees would not reasonably understand the rule to prohibit Section 7-protected activity. The following confidentiality rule, which we found lawful based on a contextual analysis, well illustrates this principle:

• Prohibition on disclosure of all “information acquired in the course of one’s work.”

This rule uses expansive language that, when read in isolation, would reasonably be read to define employee wages and benefits as confidential information. However, in that case, the rule was nested among rules relating to conflicts of interest and compliance with SEC regulations and state and federal laws. Thus, we determined that employees would reasonably understand the information described as encompassing customer credit cards, contracts, and trade secrets, and not Section 7- protected activity

Employee conduct toward employer.

Employer Handbook Rules Regarding Employee Conduct toward the Company and Supervisors

Employees also have the Section 7 right to criticize or protest their employer’s labor policies or treatment of employees. Thus, rules that can reasonably be read to prohibit protected concerted criticism of the employer will be found unlawfully overbroad. For instance, a rule that prohibits employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful. See Casino San Pablo, 361 NLRB No. 148, slip op. at 3 (Dec. 16, 2014). Moreover, employee criticism of an employer will not lose the Act’s protection simply because the criticism is false or defamatory, so a rule that bans false statements will be found unlawfully overbroad unless it specifies that only maliciously false statements are prohibited. Id. at 4. On the other hand, a rule that requires employees to be respectful and professional to coworkers, clients, or competitors, but not the employer or management, will generally be found lawful, because employers have a legitimate business interest in having employees act professionally and courteously in their dealings with coworkers, customers, employer business partners, and other third parties. In addition, rules prohibiting conduct that amounts to insubordination would also not be construed as limiting protected activities. See Copper River of Boiling Springs, LLC, 360 NLRB No. 60 (Feb. 28, 2014). Also, rules that employees would reasonably understand to prohibit insubordinate conduct have been found lawful.

Unlawful Rules Regulating Employee Conduct towards the Employer

We found the following rules unlawfully overbroad since employees reasonably would construe them to ban protected criticism or protests regarding their supervisors, management, or the employer in general.

• “Be respectful to the company, other employees, customers, partners, and competitors.”
• Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
• “Be respectful of others and the Company.”
• No “[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.”

While the following two rules ban “insubordination,” they also ban conduct that does not rise to the level of insubordination, which reasonably would be understood as including protected concerted activity. Accordingly, we found these rules to be unlawful:

• “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
• “Chronic resistance to proper work-related orders or discipline, even though not overt insubordination” will result in discipline.

In addition, employees’ right to criticize an employer’s labor policies and treatment of employees includes the right to do so in a public forum. See Quicken Loans, Inc., 361 NLRB No. 94, slip op. at 1 n.1 (Nov. 3, 2014). Accordingly, we determined that the following rules were unlawfully overbroad because they reasonably would be read to require employees to refrain from criticizing the employer in public:

• “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
• “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
• Do not make “[s]tatements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”
• “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”

With regard to these examples, we recognize that the Act does not protect employee conduct aimed at disparaging an employer’s product, as opposed to conduct critical of an employer’s labor policies or working conditions. These rules, however, contained insufficient context or examples to indicate that they were aimed only at unprotected conduct.

Lawful Rules Regulating Employee Conduct towards the Employer

In contrast, when an employer’s handbook simply requires employees to be respectful to customers, competitors, and the like, but does not mention the company or its management, employees reasonably would not believe that such a rule prohibits Section 7-protected criticism of the company. The following rules, which we have found lawful, are illustrative:

• No “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company.
• “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”

Similarly, rules requiring employees to cooperate with each other and the employer in the performance of their work also usually do not implicate Section 7 rights. See Copper River of Boiling Springs, LLC, 360 NLRB No. 60, slip op. at 1 (Feb. 28, 2014). Thus, we found the following rule was lawful because employees would reasonably understand that it is stating the employer’s legitimate expectation that employees work together in an atmosphere of civility, and that it is not prohibiting Section 7 activity:

• “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.”

And we concluded that the following rule was lawful, because employees would reasonably interpret it to apply to employer investigations of workplace misconduct rather than investigations of unfair labor practices or preparations for arbitration, when read in context with other provisions:

• “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.”

As previously discussed, the Board has made clear that it will not read rules in isolation. Even when a rule includes phrases or words that, alone, reasonably would be interpreted to ban protected criticism of the employer, if the context makes plain that only serious misconduct is banned, the rule will be found lawful. See Tradesmen International, 338 NLRB 460, 460-62 (2002). For instance, we found the following rule lawful based on a contextual analysis:

• “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in” discipline.

Although a ban on being “disrespectful” to management, by itself, would ordinarily be found to unlawfully chill Section 7 criticism of the employer, the term here is contained in a larger provision that is clearly focused on serious misconduct, like insubordination, threats, and assault. Viewed in that context, we concluded that employees would not reasonably believe this rule to ban protected criticism.

C.     Using Private Social Media Accounts for Business Purposes

Private social media (also sometime referred to as intranet accounts) may be useful to create a social network that is accessible only employees or a limited group of people.  Such private accounts are subject to the same Section 7 protections as more public sites like Facebook and Twitter.

Private social media sites may include blogs in which employees discuss employment matters between themselves.  Employees should be restricted from using such blogs as representatives of the employer, unless the employer specifically authorizes such employees to speak for the company.  A good Social Media policy will contain such restrictions.  Such restrictions are generally lawful as they protect an employer’s product or services.  The disparagement of an employer’s product or services is generally not considered protected concerted activity.  However, discussions on a blog between employees of the decisions of their employer or the performance of their supervisors would likely be protected concerted activity.

In addition to custom created sites, there are several commercial sites that employers may use for private social media sites such as: Yammer, Bitrix24, Chatter.com and WordPress to limit the participants on the social media site.  It is beyond the scope of this article to discuss the advantages, disadvantages and limitations of such sites.

When creating a private social media account, employers (and their attorneys) should keep two practical and common sense things in mind:

1. Prior to retaining an independent contractor to create a site, it is necessary to enter into a written “works for hire” agreement with the contractor for the employer to retain exclusive proprietary, copyright and other rights to the site; and
2. Even when sites are set up or created internally by employees, the employer should maintain the exclusive right to passwords to access the site.

There are a growing number of cases where employers have had to resort to litigation to obtain passwords and access to their own private social media sites.

D.    Using Social Media in Hiring Decisions.

Federal, state, and local anti-discrimination laws prevent employment decisions based on protected status.  Protected status information -such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. [16]

In the hiring context, it is generally impermissible for an employer to ask an applicant questions about a protected status.  If decision makers (hiring managers) have access to social media sites, they will likely be exposed to impermissible information.

If social media is to be checked, the best practice is to shield the decision makers from the use of social media sites and further restrict the non-decision makers, who may check the sites, to report only public information to the decision makers.  It is better to have a non-decision maker familiar with protected statuses (HR perhaps) do so and report only the public information on the social media site to the decision makers.

In addition, several states prohibit an employer from requesting an applicant to provide his or her social media passwords.  Asking for passwords, where it may be permitted, unnecessarily opens employers up to challenges of hiring decisions on the basis of discrimination because it often will present the employer with protected status information about which they are prohibited from asking in an interview.

In 2014 the EEOC estimated that 77% of companies surveyed reported they had used social media in 2013 to recruit candidates.[17]  Finally, if social media is used to advertise a position, remember that social media postings are “advertisements” that must include the appropriate equal employment opportunity (EEO) and/or affirmative action (AA) tagline. Further, the postings must be retained like all other hiring documents as required by law (or longer if the employer’s policy has a longer duration period).

E.     Best Practices for Creating and Updating Social Media Policies.

The starting place for creating or updating a lawful Social Media policy is to make use of the social media policy language which has been approved by the NLRB and adapt the language to the particular circumstances and requirements of the employer.  In addition, policies should be reviewed by knowledgeable counsel.  Guidance from the NLRB should be reviewed and compared to the proposed policies.  Even with the perfectly crafted policy, the employer must implement the policy in accordance with the law.  an unfair labor practice can result from the employer implementing the policy and imposing discipline beyond the policy.  Finally, a Social Media policy should mesh with the employer’s other policies, particularly the company’s Ethics, Information, Anti-discrimination and Harassment Prevention Policy, and Offensive Behavior (Bullying) Policy.

The following sample policy is a policy which was approved by the General Counsel for the NLRB in its third Memorandum on Social Media Guidance:

SAMPLE SOCIAL MEDIA POLICY (Previously approved by NLRB General Counsel)

Effective Date:  _______________________

We understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all employees who work for the Company.

GUIDELINES

In the rapidly expanding world of electronic communication, social media can mean many things.  Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with the Company, as well as any other form of electronic communication.

The same principles and guidelines found in the Company’s policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow employees or otherwise adversely affects members, customers, suppliers, people who work on behalf of the Company or the Company’s legitimate business interests may result in disciplinary action up to and including termination.

1. Know and follow the rules

Carefully read these guidelines, the Company’s Ethics Policy, Information Policy, anti-Discrimination and Harassment Prevention Policy and Offensive Behavior (Bullying) Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Always be fair and courteous to fellow employees, customers, members, suppliers or people who work on behalf of the Company. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, employees or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered.

Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about the Company, fellow employees, members, customers, suppliers, people working on behalf of the Company or competitors.

Post only appropriate and respectful content

• Maintain the confidentiality of the Company’s trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
• Do not create a link from your blog, website or other social networking site to a Company website without identifying yourself as a Company employee.
• Express only your personal opinions. Never represent yourself as a spokesperson for the Company. If the Company is a subject of the content you are creating, be clear and open about the fact that you are an employee and make it clear that your views do not represent those of the Company, fellow employees, members, customers, suppliers or people working on behalf of the Company. If you do publish a blog or post online related to the work you do or subjects associated with the Company, make it clear that you are not speaking on behalf of the Company. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of the Company.”

Using social media at work

Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company’s Electronic Device Policy.

Do not use Company email addresses to register on social networks, blogs or other online tools utilized for personal use.

Retaliation is prohibited

The Company prohibits taking negative action against any employee for reporting a possible deviation from this policy or for cooperating in an investigation. Any employee who retaliates against another employee for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Media contacts

Employees should not speak to the media on the Company’s behalf without contacting Management. All media inquiries should be directed to them.

For more information

If you have questions or need further guidance, please contact your supervisor or Management.

Donald C. Erickson, Senior Counsel, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota.

[1] 29 U.S.C. § 151-169

[2] 29 U.S.C. Sec. 157

[3] Butler Med. Transp., LLC, Case No. 5-CA-97811, 2013 WL 4761153.

[4]

[5] 281 N.L.R.B. 882 (1986), af’fd. sub. nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987) cert. denied, 487 U.S. 1205 (1988)

[6] Id. at 885.

[7] See, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793 @ 797-98 (1945)

[8] See, e.g., Williamette Indus. Inc., 306 N.L.R.B. 1010 @ 1017 (1992)

[9] 343 N.L.R.B. 646 (2004)

[10] A link to the NLRB summary of its actions regarding social media  may be found at http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media

[11] April 2, 2015

[12] A link to the memoranda may be found at http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media

[13] A link to the March 18, 2015 Memorandum may be found at: http://www.managementmemo.com/files/2015/03/GC-15_04-Report-of-the-General-Counsel-Concerning-Employer-Rules.pdf

[14] As these are general rules and not specific legal advice relating to the specific terms of a social media policy, the practitioner should review the memoranda of the General Counsel and compare them to the proposes social media policies before determining whether a rule is lawful or not.

[15] Non-union employers may be surprised to find that under Section 7, management and its decisions are not entitled to the same level of respect on social media as discussion about other employees, customers and competitors.

[16] See, http://www.eeoc.gov/eeoc/newsroom/release/3-12-14.cfm

[17] See, http://www.eeoc.gov/eeoc/newsroom/release/3-12-14.cfm