Companies are understandably concerned about the potential for security breaches or embarrassing incidents resulting from ill-judged social media activities on the part of employees. But many corporate policies intended to head off these problems risk going too far, according to a new report by the acting general counsel for the National Labor Relations Board, who recently reviewed the social media policies of seven big companies – and found six in violation of the National Labor Relations Act.
The main criterion for judging whether a corporate social media policy is inappropriate is whether it “would reasonably be construed to chill the exercise of Section 7 rights” of employees as set forth by the National Labor Relations Act. For example, a corporate social media policy which forbids employees from disclosing any kind of confidential information could be used to prevent the employee from complaining about unsafe or unfair working conditions, in violation of Section 7 rights, which are designed in part to make sure employees have outside recourse for reporting these kinds of issues.
Similarly, prohibitions against “offensive” or “inappropriate” remarks on social media are overbroad because they could be construed by employers as including any kind of criticism of the company’s labor policies. Prohibitions on discussing legal matters run into the same problem, since legal matters could potentially include workplace conditions or employment policies.
The NLRB GC also gave examples of acceptable social media policies and guidelines, for example warning employees that “you are solely responsible for what you post online.” Another coverall admonition deemed acceptable by the NLRB: “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… may result in disciplinary action up to and including termination.”
Another acceptable guideline: “Maintain the confidentiality of trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology.”