Obviously, employers can't expressly ban social media speech protected by the NLRA. Example: "No communicating with co-workers to address the terms and conditions of your employment." That's a no-brainer - it violates the NLRA because it prohibits concerted activity. The NLRB memo seems more concerned with broad social media policies that can be interpreted to cover NLRA-protected social media conduct.
The NLRB provided a few cases. One case included three overly broad clauses to give you an illustration:
Rule 4 of the policy prohibited employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.
Rule 5 prohibited any communication or post that constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee, officer, board member, representative, or staff member.
Rule 6 contained a similar prohibition against statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees.Well those all sound reasonable, what's the problem!? The NLRB reasoned that the employer didn't define "privacy or confidentiality" in Rule 4. And, the employer applied the rule to terminate an employee who had complained and asked for details regarding a co-worker's repeated absences disrupting work (aka the employer applied it to concerted activity addressing workplace conditions).
OK, but what about Rules 5 and 6? "These included broad terms that would commonly apply to protected criticism of the Employer’s labor policies or treatment of employees." So, according to the NLRB, they're overly broad too.
So, what's an employer to do? The employer could just get rid of the supposedly overly broad policies. But - and I hope I'm not shocking you here - there's plenty of embarrassing, harassing, defamatory, false, and reputation-damaging social media conduct that an employer can, should and, in the case of harassment, must prohibit. The lack of case law makes it tough to know for certain what employers can do, but one common approach is to include a disclaimer.
My Think Before You Click: Strategies for Managing Social Media in the Workplace co-author, Molly DiBianca, has a Sample Social Media Policy worth checking out. She includes the following disclaimer:
Nothing in this Policy is intended to or will be applied in a manner that limits employees’ rights to engage in protected concerted activity as prescribed by the National Labor Relations Act.I think this will help save clauses that might otherwise be overly broad. But we're in new territory here, so I'll keep an eye out for new developments in the law and keep you posted.
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.