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1 Social Media Policies and Procedures John Cummings, MBA, PHR, CIC Risk Management Program Manager Montana Municipal Interlocal Authority Consult with your Attorney The Acting General Counsel s Reports Issued by the NLRB s Acting General Counsel Discusses recent case developments arising in the context of today s social media First report - August 18, pages 14 cases 9 discharge cases 5 found unlawful 5 policy cases 4 found unlawful Second report - January 24, 2012 Updates August 18, 2011 Report 35 pages 14 cases 11 discharge cases 5 found unlawful 7 policy cases 6 found unlawful 1

2 Purpose of General Counsel s Reports Keep labor management community fully aware of the activities of the General Counsel s Office Encourage compliance with the National Labor Relations Act Encourage cooperation with Board s personnel General Take Aways The Board has extended an employee s Section 7 rights to a broad range of social media activity Employee terminations that prohibit the exercise of an employee s Section 7 rights are unlawful Blanket social media policies that prohibit the exercise of Section 7 rights are unlawful Blanket disclaimer might not work either. Section 7 Rights Under The National Labor Relations Act The National Labor Relations Act (NLRA) forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment. Section 7 Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.... 2

3 Concerted Activities An activity is concerted when an employee acts with or on the authority of other employees, and not solely by and on behalf of the employee himself. Meyers Industries, 268 NLRB 493 (1984). Two Components Conduct must be protected by the NLRA Protected conduct - statements regarding an employee s wages, working conditions or other terms of employment Conduct must involve concerted activity Concerted activity discussions/conversations among coworkers for mutual aid or protection Examples of Protected Activities Nurse s posting the expressed frustration over the frequent absences of a coworker that created heavier workload for others. Employee s posting of dissatisfaction with employer s failure to without State taxes and poor management of employee paperwork. Employee s posting complaint about supervisor s actions, in which several coworkers joined in, even when called supervisor a scumbag. 3

4 Examples of NON-Protected Activities Employee tweets critical of other employees that included sexual content as it did not relate to terms and conditions of employment Single employee s Facebook criticisim of supervisor Postings that threaten violence or harm to others in the workplace. Discharge for Job Performance and Staffing Postings Was Unlawful Nonprofit social services provider unlawfully terminated employees for posting comments relating to poor job performance and staffing Concerted activity Facebook discussion was a textbook example of concerted activity Discussion initiated by one coworker in an appeal to her coworkers for assistance Protected activity Discussion regarding staffing levels protected where it implicated working conditions August 18, 2011 Memorandum Discharge for Negative Postings About Supervisor Was Unlawful Ambulance Service unlawfully terminated employee who called her supervisor a scumbag Comment protected because concerned supervisor s refusal to provide union representation during an investigatory interview Conduct concerted because other employees supported the employee s comments about the supervisor Name calling was protected because not accompanied by verbal or physical threats Employer s policy was overly broad August 18, 2011 Memorandum 4

5 Discharge for Embarrassing Photos of Sales Event Was Unlawful Luxury car dealership unlawfully discharged sales employee for posting photos and commentary criticizing a sales event Concerted activity vocalizing sentiments of coworkers and continuing concerns raised at staff meeting concerning the effect the choice of refreshments would have on sales/commissions Protected conduct discussion of salary/commissions August 18, 2011 Memorandum Discharge for Disparaging Comments Was Unlawful Collections agency unlawfully discharged employee for posting disparaging comments about the company after she was transferred to lower paying position Employee s initial Facebook statement and the discussion it generated with other coworkers about working conditions was protected and concerted activity Employer s policy was overly broad Discharge for Facebook Postings Was Lawful No Concerted Activity Chain of home improvement stores did not unlawfully discharge employee for Facebook postings because employee did not engage in concerted activity Employee s Facebook postings were merely an expression of the employee s individual gripe No particular audience in mind Postings did not grow out of a prior discussion about the terms and conditions of employment Employer s social media policy overly broad and unlawful 5

6 Discharge for Facebook Postings Was Lawful No Protected Activity Bartender who was discharged by restaurant chain for criticizing coworker who passed off low-grade drinks as premium liquor, was lawful Bartender was complaining about the quality of service provided by the employer and not about the terms or conditions of her employment The link between the posts and any term or condition of employment was too attenuated to implicate the concerns underlying Section 7 Discharge Cases Take Aways Carefully review any discipline that arises out of social media postings Is the activity protected? Does the posting raise concerns regarding wages, hours or other terms and conditions of employment? Is the activity concerted? Does the posting occur in the context of a discussion, conversation or other interaction between coworkers? Train supervisors on improper social media postings and proper steps in disciplining employees Section 8 Rights Under the National Labor Relations Act An employer violates Section 8(a)(1) of the NLRA through the maintenance of a work rule if that rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette Park Hotel, 326 NLRB 824 (1998). 6

7 Policy Prohibiting Disparaging Comments Was Unlawful Policy prohibiting employees from making disparaging remarks when discussing the company or supervisors was unlawful Policy contained no limiting language to inform employees that it did not apply to Section 7 activity August 18, 2011 and January 24, 2012 Memoranda Policies Containing Undefined Terms and No Examples Are Unlawful Policies prohibiting inappropriate discussions inappropriate language, unprofessional conduct, disrespectful conduct, offensive conduct and rude or discourteous behavior consistently found to be overly broad where Specific examples of terms not included in policy Terms not defined Employees could reasonably interpret the policy to prohibit their discussion of terms and conditions of employment among themselves or third parties August 18, 2011 and January 24, 2012 Memoranda Requiring Postings Be Professional or Appropriate Was Unlawful Employer that required that social media communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments regarding the employer and its subsidiaries, shareholders, officers and patients was overly broad 7

8 Requiring Disclaimer Was Unlawful Requiring employees to state that their comments as their personal opinions and not those of their employer every time they post would significantly burden the exercise of an employee s Section 7 rights to discuss working conditions and criticize an employer s labor policies. Policy Restricting Employee Contact with Media Was Lawful Public affairs office was responsible for all official external communications Employees expected to maintain confidentiality about sensitive information Imperative that one person speak for the employer to deliver appropriate message and avoid misinformation A media policy that seeks to ensure a consistent, controlled company message and limits employee contact with the media only to the extent necessary to effect that result, cannot be held to restrict Section 7 communications August 18, 2011 Memorandum But General Policy Prohibiting Statements to Media Was Unlawful Employer s rule that prohibits employee communications to the media or requires prior authorization for such communications is unlawfully overbroad Restricting all public statements regarding the company, which would include protected Section 7 communications among employees and between employees is overly broad 8

9 Prohibiting Use of Company s Name Without Prior Approval Unlawful Policies prohibiting use of the Company s name or service are overly broad Policies prohibiting prior approval before using Company s name or service mark are overly broad Postings About Company on Personal Profiles Was Unlawful Employer s policy prohibiting employees from using the company name, address, logo, photos or other information on their personal profiles, was not narrowly drawn to address company s legitimate interest in preventing disclosure of certain protected company information to outside parties August 18, 2011 Memorandum Miscellaneous Policies Found Unlawful Policy prohibiting employees from using social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity This policy provided no definition or guidance as to what the employer considered to be private or confidential Policy prohibiting any communication or post that constitutes embarrassment, harassment or defamation of the employer or any employee, or staff member This policy contained broad, undefined terms Policy prohibiting statements that lack truthfulness or that might damage the reputation or goodwill of the employer, its staff or employees This policy contained broad, undefined terms August 18, 2011 Memorandum 9

10 Non-Solicitation Rule Was Unlawful Rule that bans solicitation in non-work areas during non-work time is an unreasonable impediment to self organization... in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline Savings Clause Was Insufficient Savings Clause This policy should not be interpreted or applied so as to interfere with employee rights to self organize, form, join, or assist labor organizations, or to bargain collectively through representatives of their choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities. Employee could not reasonably be expected to know that this language encompasses discussions the employer deems inappropriate Policy Cases Take Away Review and revise social media, work rules, electronic communication policies Revise policies to reflect legitimate business concerns Include definitions of broad or vague terms Give specific examples of prohibited conduct Give business rationale for prohibited conduct Consider utilizing a savings clause 10

11 WHAT SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? A definition of what is Social Media. A good definition is one that includes, but is not limited to, personal blogs; sites such as FaceBook, LinkedIn, MySpace and Twitter; video or wiki postings; chat rooms; personal websites; or other forms of online journals, diaries or websites not affiliated with the company. WHAT SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? A statement that the company takes no position on the employee s decision to start or maintain a blog or participate in other social media or social networking. A statement that the company has the right and duty to protect itself from unauthorized disclosure of confidential and/or proprietary information. WHAT SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? A statement that the company has the right and duty to protect itself from having employees indicate that they are speaking on behalf of the company when they are not authorized to do so. 11

12 WHAT SHOULD WE INCLUDE IN OUR SOCIAL MEDIA USE POLICY? First, include a statement that the company respects the employees right to write blogs, use social media, and use social networking sites. Second, state that the company does NOT WANT TO DISCOURAGE employees from selfpublishing and self-expression. Third, state that the company takes a NEUTRAL STANCE towards employees who use Social Media in connection with personal interests and affiliations, or for other lawful purposes. TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA Unless specifically authorized in writing by the President of the company, Employees are not authorized to and are therefore restricted from speaking on behalf of the company through Social Media. TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA Employees may not discuss patients, specific patient matters, or any privileged, confidential and/or proprietary work-related matters and information through Social Media. 12

13 TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA Employees cannot use company equipment including computers, company-licensed software or other electronic equipment, facilities or work time to conduct personal blogging or social media/social networking activities. TELL EMPLOYEES WHAT IS PROHIBITED IN TERMS OF THEIR PERSONAL USE OF SOCIAL MEDIA Employees must use their own personal address, and may not use their company address, as their means of identification and communication for Social Media use. Employees cannot use blogs or social media/social networking sites to defame, disparage, threaten, intimidate, harass, discriminate against or retaliate against employees, the company, its customers, or anyone associated with the company. Policy provisions that are unlawful UNDER Section 8(a)(1) Employer (car dealership) had various policies deemed unlawful by the NLRB: Policy prohibiting employees from making disparaging comments when discussing the company or the employee s superiors, coworkers, and/or competitors. Policy prohibiting disrespectful conduct and use of profanity towards others. Policy stating that employees are subject to discipline for engaging in unauthorized interviews with, or for answering inquiries concerning employees by, attorneys, peace officers, investigators, reporters, or someone who wants to ask a few questions. Karl Knauz Motors, Inc. & Robert Becker, Case 13-CA (Sept. 28, 2011) (ALJ Decision) 13

14 Policy provisions that are lawful UNDER Section 8(a)(1) Employer policy precluded employees from pressuring their coworkers to friend, connect or communicate with them via social media. This admonition was sufficiently specific in its prohibition in pressuring coworkers and clearly applied only to harassing conduct, so it could not reasonably be interpreted to apply more broadly to restrict employees from attempting to friend or otherwise contact colleagues for the purposes of engaging in protected concerted or union activity. 14