The government is watching social media policies - Part II

It is crucial for companies to establish social media guidelines to limit the potential for damage and save staffers from the consequences of their own bad judgment.

It is crucial for companies to establish social media guidelines to limit the potential for damage and save staffers from the consequences of their own bad judgment. Thus, as noted in my previous column, the federal government's increasing interest in corporate social media policies is very noteworthy.

At the end of that entry, I promised a deeper dive into some of the specific aspects of the National Labor Relations Board's (NLRB) many recent rulings on such policies.

Much like my last column, this one is based on a report my firm recently prepared analyzing NLRB rulings in 14 distinct topics. All of them involve policy provisions that extend to employees' personal use of social media, since a company generally has much more latitude to control what is said on its behalf. I can't cover all of them here, though if you e-mail me I'll be happy to send you a copy of the report.

The NLRB's interest in social media policies is primarily to enforce the federal statute that entitles workers – whether or not in unionized workplaces – to communicate with each other about salary, working conditions, and other aspects of employment. This is known as “protected concerted activity.” The agency is interpreting that right in ways that lead to some surprising results:

•You probably can't ban employees from talking about the business. Some companies have taken the “keep it simple” route and simply banned all unauthorized social media discussion of the business. But the NLRB says this is illegal. Frankly, even if it weren't, we think it's a bad idea. Employees have always talked about work with their friends, whether on social media or otherwise. Rather than prohibiting it, we generally advise providing employees with the information they need to be effective ambassadors for your company and your brands.

•You probably can't prohibit online speech simply because it may injure the company's reputation. While narrowly tailored prohibitions against truly defamatory statements might survive scrutiny, broader efforts to protect reputation by banning “inappropriate” or “disparaging” comments are likely to be a problem. The NLRB has ruled against a broad array of such provisions, though narrower prohibitions against disparaging a product (rather than the company) may be less likely to implicate NLRB concerns about worker discussions about wages and the like.

•One person's bullying is another's protected concerted activity. The key here is to be focused and specific. The NLRB upheld a bullying provision that was accompanied by a list of “plainly egregious conduct,” but has rejected broader admonitions against “offensive, demeaning, abusive, or inappropriate” remarks.

•Provisions governing proprietary information may be too broad. If they can be interpreted as restricting employees from a potential claim against the employer, the NLRB may object. You can strengthen your policy by providing examples of the sort of information you intend to protect. And employees have the right to use the company's logo in their protected concerted activity.

•You probably can't prohibit people from identifying themselves as your employees. It is fairly common for policies to prohibit such identification or to require disclaimers that statements are not made on the company's behalf. But the NLRB says employees must be allowed to identify themselves as employees when engaging in protected concerted activity. Disclaimers may be the way to go, but a requirement that a disclaimer be made in every social media posting was rejected by the agency as too broad.

As I said earlier, this just scratches the surface, but it gives you an idea of how counterintuitive – though mostly reasonable once you understand them – these agency rulings can be. I encourage you to read our report and to ensure that your legal counsel is up to speed on this rapidly evolving area of the law.

Bob Feldman is cofounder and principal of PulsePoint Group, a digital and management consulting firm. He can be reached at bfeldman@pulsepointgroup.com. His column focuses on management of the corporate communications function. 

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