Additional Suggestions Based on Federal Labor Law
In addition to recent NLRB cases, the NLRB has also offered extensive guidance through its Acting General Counsel's reports, which explain the NLRB's current position on social media. Unlike a regular NLRB case, not everything in these reports is the law yet. However, the reports are still very useful because they offer companies cautionary guidance and are very likely to become the law in the near future. Foremost, the reports reiterate that handbook policies must not be too broad; otherwise, employees will think that their right to engage in unionization activities is also being restricted. The reports contain additional useful advice, which I have summarized below.
Give the policy some context: A policy can restrict certain social media activities if the policy provides enough context that employees know that the policy is not meant to restrict their unionization activities. Therefore, a company should try to explain the business purpose behind their policy. The examples below give their respective policies the appropriate context and are therefore lawful.
- "Employees may not use 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 workplace policies against discrimination, harassment, or hostility on the account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic."
- "Employees may not use or disclose confidential/proprietary information that is necessary to ensure compliance with securities regulations and other laws."
- "Employees must maintain the confidentiality of company trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications online."
- "Promotional Content: Employees may not refer to the employer by name or publish promotional content. Promotional content is defined as content that is designed to endorse, promote, sell, advertise, or otherwise support the employer and its products and services." (Yes, this company policy was meant to comply with the FTC's endorsement guidelines, too.)
Provide definitions: Be sure to define ambiguous words that employees could mistakenly believe are restricting their unionization activities. For example, the term "inappropriate communication" could refer to sexual harassment, but it could also refer to communications about wages (which the NLRB explicitly protects) if the term is not properly defined.
There are many other words that also require definitions: misleading, untrue, inaccurate, sensitive, confidential, proprietary, non-public, private, personal, inflammatory, disrespectful, unprofessional, dishonest, unreasonable, objectionable, offensive, demeaning, abusive, damaging, embarrassment, harassment, and defamation. This is not an exhaustive list. When in doubt, define the word clearly.
Use examples: In addition to defining ambiguous words, provide examples. For instance, explain that the term "inappropriate communications" refers to activities such as "displaying sexually-oriented material" or "revealing trade secrets."
Do not require employees to be courteous and avoid conflict when using social media. Employees could interpret such "courtesy policies" as restricting their unionization activities because discussions about unionization are often heated and cause conflict. Instead, be sure to clarify what kind of conduct is not appropriate (e.g., using profanity) through proper definitions and context.
Do not restrict employees from posting about certain topics that federal labor law normally allows them to discuss, such as wages and other terms and conditions of their employment.
Do not restrict employees from using social media at work. Federal labor law allows employees to engage in unionization activities while on company premises as long as employees do it during non-work time (e.g., lunch) and in non-work areas (e.g., outdoor picnic area).