Wednesday, May 7, 2014

Are Provisions in Your Social Media Policy Overbroad? The NLRB Might Think So

Employers see social media as a new and different form of communication by their employees, requiring careful consideration and special policies. But according to a recent decision from a National Labor Relations Board Administrative Law Judge, online communications are analogous to a form of communication that has been in workplaces for decades – water-cooler talk.  In The Kroger Company of Michigan, the judge ruled that employers may run afoul of Section 7 of the National Labor Relations Act ("NLRA") by placing certain limitations and burdens on their employees' online communications that it would not put on communications made elsewhere, such as at the water cooler.

Section 7 of the NLRA gives employees the right to communicate with one another regarding their terms and conditions of employment. The judge struck down four provisions in the employer's social media policy that, in essence, stated the following:

  1. If an employee of the company identifies him/herself as such and publishes any work-related information online, he or she must include a disclaimer stating that the postings represent the employee's views and not those of the employer.
  2. Employees must not use the company's intellectual property assets (e.g., copyrights, trademarks, etc.) without permission.
  3. Employees must not discuss confidential and proprietary information about the company in any public forum and must not comment on rumors or speculation related to the company's business plans.
  4. Employees must not engage in behavior online that would be inappropriate at work, such as disparagement of the company, its leadership, or its employees.
The judge found each of these provisions to be overbroad. First, he found that the requirement to include a disclosure with each work-related online communication was too burdensome and would therefore have a chilling effect on employees' Section 7 rights. While the judge recognized the employer's legitimate interest in not having certain employee communications associated with the company, he found that the breadth of the policy went beyond the employer's legitimate interests. This is where the judge invoked the water-cooler analogy, finding that online communications are more analogous to water-cooler talk than a company press release and therefore should not require the burdensome formality of a disclaimer.

Second, the judge held that the employer's prohibition on the use of its intellectual property without permission was overbroad because it prohibited even the fair use of the company's logos, banners, etc. Third, the judge found that the rule against commenting on rumors or speculation related to the company's business plans was too broad because comments related to business plans could include communications obviously protected by the NLRA, such as discussions of transfer of employees, potential shutdowns, closures, layoffs, and transfer of work. Finally, the judge found that the policy's prohibition of online behavior that would be inappropriate at work such as disparagement of the company, its leadership, or other employees was overbroad because it clearly could be understood to ban protected activity, such as criticism of the employer or its agents. 

So you may want to review your company's social media policy to ensure that its provisions are tailored to serve the company's legitimate interests and cannot be interpreted to infringe on employees' Section 7 rights. Perhaps a good question in assessing whether your policy is overbroad is to ask, "Would this be a legitimate restriction to place on our employees' water-cooler talk?"

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