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Imagine that one day, just out of curiosity, you Google your company name. The first thing that comes up is a link to a YouTube video, which was made by one of your employees. The video includes an image of your company logo, with several complaints about the company’s products and services. You notice that the employee who made this has several Facebook and Twitter posts with similar complaints. Can you do anything?
Many employers have adopted social media policies in an effort to curb negative social media posts by employees. Recent decisions of the National Labor Relations Board provide guidance regarding such policies. Remember, even if your employees don’t have a labor union, they still have rights under federal law: the National Labor Relations Act.
This column will provide suggestions regarding the provisions of social media policies that recently have been found to be lawful or unlawful. However, as always, this article does not substitute for the advice of legal counsel.
One employer’s confidential information policy prohibited employees from using the company logo “in any manner.” That policy was found to be overbroad and unlawful, as it restricted employees’ ability to engage in “protected concerted activities” under the NLRA. (Boch Imports d/b/a Boch Honda, 362 NLRB No. 83 (2015).
Another employer’s policy provided as follows: “If you aren’t careful and don’t use your head, your online activity can … spread incomplete, confidential, or inaccurate information. You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to (the company), our employees, suppliers, customers, competition, or investors.”
The board found that the policies prohibiting employees from posting “incomplete, confidential, or inaccurate information” and preventing employees from making “disparaging, false, (or) misleading” statements were unlawful.
Also, the board deemed the terms “confidential” and “false” as overly broad and not defined, and therefore infringed on employees’ rights. Under board precedent, false statements are protected unless they are maliciously false, i.e., knowing or recklessly false.
Finally, “disparaging” statements were equated with those that are derogatory – employees have a protected right to make derogatory statements about the terms and conditions of their employment.
In contrast, the prohibition on “harassing or discriminatory statements” was upheld, with the notion that employers have a right to expect that employees will “comport themselves with general notions of civility and decorum.”
As is common in social media policies, the policy recently reviewed by the board included the following disclaimer: “(t)his (social media) code does not restrict any activity that is protected by the National Labor Relations Act.” The board ruled that the disclaimer, which appeared at the conclusion of the social media policy, did not cure the unlawful provisions in the policy. (Chipotle Services LLC 364 NLRB No. 72 (Aug. 16, 2016).
The board also considered actual social media posts by employees. In one case, the board found that several statements on Twitter were merely “individual gripes” and therefore did not constituted “concerted activity.” (Chipotle Services LLC (2016).
In another case, the social media posts complained about the employer’s improper withholding of taxes, causing employees to have an income tax liability at the end of the year. Those posts included the statement that the manager who failed to correctly withhold taxes was an “a**hole.” Another employee “liked” that comment.
Those posts were found to be protected and concerted because they related to wages, hours, and terms and conditions of employment. The employees, who had been terminated for “performance reasons,” were reinstated, with back pay. (Three D, LLC (Triple Play) 361 NLRB No. 31 (2014); Aff’d (2d Cir. Dec. 14, 2015).
What is an employer to do? Review your social media policy, keeping in mind the following suggestions. Employers should avoid broad prohibitions on the use of the company name or logo. Prohibitions on harassment and discrimination may be upheld, but consider defining these terms by referencing your other harassment or discrimination policies.
General, subjective terms, such as “confidential” or “inaccurate information,” could raise a red flag. Finally, a broad disclaimer at the end of a social media policy likely will not be effective.
Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at firstname.lastname@example.org.