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Essentials for Social Media Policies: Surviving the NLRA

Developing a social media policy that will survive the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, et. seq. while still protecting the company is a primary focus of every employer. The key is providing specific definitions or guidance as to what an employer considers inappropriate social media activity which will be regulated and that the policy does not limit protected activity.  Policies cited by National Labor Relations Board (“NLRB”) Acting General Counsel, Lafe Solomon issued in three reports aimed at providing employers guidance on what are and are not permissible social media policies under the NLRA include the following:

  • A media policy designed to ensure a consistent, controlled company message and which limits employee contact with the media only to the extent necessary to achieve that result, i.e. a requirement that only certain individuals can identify themselves as speaking for the company.
  • A policy prohibiting use of social media to post or display comments about coworkers, supervisors or the employer that are vulgar, obscene, threatening, intimidating, bullying, harassing or a violation of specific employer discrimination or harassment policies; however, there is a fine line with such a policy and great care must be taken with drafting it so that its scope is sufficiently clear.
  • A policy prohibiting disclosure of confidential and/or proprietary information where the terms “confidential” and “proprietary” are clearly defined and examples given;

There are many others, but the difference between a policy which has been blessed and one which was not by the NLRB can be frustratingly subtle, so any policy considered for adoption should be individually scrutinized.

Probably most of use, the May 30, 2012 report of the Acting General Counsel produced in its entirety a social media policy which was endorsed by the NLRB, and as such, it provides the clearest example as yet of what the NLRB views as a valid social media policy.  However, that policy is likely not ideal for all employers, and based upon the evolution of the law on this issue it should not be considered the end of the story.  In this changing area of the law it is vital that employers stay ever vigilant if they wish to control and/or regulate the social media activities of their employees.  The free guidance provided by the NLRB should be utilized, and employers should take great care in drafting any social media policy to make sure that it does not unnecessarily or overly regulate their employees’ electronic communications.  It is clear, this issue is one which will only grow in importance as social media’s role in all our daily lives continues to expand and the forums in which employees can express themselves publicly continue to multiply.

There are two sides to every coin and while employers need to stay ahead of the curve with social media policies, there are also clear lines drawn for proper use of social media in the screening process. 

Luke A. Wingfield is an associate with McBrayer Law. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mcbrayerfirm.com or at (859) 231-8780, ext. 1265.

Services may be performed by others.

This article does not constitute legal advice.

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