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Employment Law Newsletter: 2nd Quarter 2012

Social Media – Managing the Risks

Your Policies May Violate Labor Laws

Employers are right to be concerned about employees’ online activities that criticize management or fellow em­ployees, expose confidential information or trade secrets, or otherwise disparage the company’s products or ser­vices. However, employers need to be cautious that their policies governing employee conduct, including social media use, do not violate the National Labor Relations Act (NLRA).

Section 7 of the NLRA grants employees, union and non-union, the right to join with their co-workers to discuss or protest wages, hours, or terms and con­ditions of employment. This can include employee postings on social media sites such as Facebook or Twitter. The National Labor Relations Board (NLRB) is aggressively scrutinizing employers’ social media and employee conduct policies that could be “reasonably construed” to restrict NLRA rights.

In this environment of heightened enforcement, employers need to review, and maybe revise, their social media and employee conduct policies. Policies must be drafted with attention towards language that could reasonably be read to limit employees from joining with their co-workers to discuss or pro­test wages, hours, or terms and conditions of em­ployment. Here are some of the major issues, and recommendations for reducing or eliminating the risk of a violation.

Restrictions on disparaging or negative communi­cations about the company or its employees

Anti-disparagement policies need to be narrowed to prohibit only disparaging or negative communi­cations regarding the employer’s products or ser­vices. The NLRA gives employees the right to say some pretty outrageous things about their employ­er, their supervisors, and their coworkers, so long as the statements relate to wages, hours, or terms and conditions of employment. The NRLB is of the opinion that policies that prohibit any and all dis­paraging comments about the company or its em­ployees infringes upon those rights and violates the NLRA.

Restrictions on employees’ presenting false, dishonest, or misleading, but not “maliciously false,” information

The NLRA has been interpreted to give employees the right to present objectively false or misleading information if the communications relate to wages, hours, or terms and conditions of employment. Poli­cies that ban generally false statements about the employer or coworkers have been found to violate the NLRA. Employers may still prohibit “maliciously false” statements; i.e., where the employee knows that the statement is false and purposefully intends to harm the company or coworkers with the infor­mation.

Restrictions on disclosing information about wages, hours, or terms and conditions of employment

Employer policies should expressly define “confiden­tial information” to exclude information on wages, hours, and terms and conditions of employment. Companies have the right to require employees to keep confidential the company’s business secrets, intellectual property, and other similar information. But, under the NLRA, employees cannot be prohibit­ed from disclosing general information about wages, hours, or terms and conditions of employment.

Restrictions on employees using company logos and trademarks

Policies restricting the use of company logos or trademarks must expressly state that the restric­tion does not apply to activities protected under the NLRA. The NLRB has taken the position that, regardless of intellectual property rights, employ­ees have the right to use company logos and trade­marks in connection with discussions or protests over wages, hours, or terms and conditions of employment. Examples include protest materials with company logos, and using pictures of compa­ny stores in web-postings related to wages, hours, or terms and conditions of employment.

Requirement that employees obtain “approval” from the company before identifying or referencing their employment

Requirements that employees get permission be­fore mentioning their employer in personal social media may violate the NLRA. The same goes for requirements that employees include a disclaimer on their personal social media sites, such as “the views expressed on this Web site are mine alone and not the views of my employer.” Any such requirements should be limited to social media postings relating to company products and servic­es, rather than barring or restricting any mention of the company or its operations.

Inclusion of general disclaimer language in policies to indicate that NLRA rights are not infringed will not protect employers

The NLRB had earlier indicated that if a policy specifically states that it does not and should not be read to restrict NLRA rights, then an em­ployer would likely not be found in violation of the NLRA. But the current acting general coun­sel of the NLRB has at times disregarded such disclaimer language in social media and related policies, and asserted that the policy violates the NLRA. Employers should not assume then that their policy is safe just because it includes a dis­claimer. Employers need to limit overbroad lan­guage. Specific and multiple disclaimers should be included throughout the policy in connec­tion with each provision that could be “reason­ably construed” to restrict NLRA rights.

Employers would be wise not to request social media passwords from employees and job applicants

A hot topic in the news is companies requesting access to job applicants and employee’s Facebook and other so­cial media sites. Employers should not follow suit lest they risk potential legal consequences.

Employers risk violating the federal Stored Commu­nications Act of 1986 (SCA)

The SCA prohibits a per­son from intentionally accessing a person’s personal email or social media account without their consent. A court would likely find an applicant or employee did not truly consent to having their private, person­al webpage viewed when they had to hand over their password as a prerequisite for employment. Viola­tors can be subject to civil and criminal penalties. Of course, if the site is open to the public, then view­ing it would not violate the SCA. However, you risk other legal consequences by viewing the site.

Accessing applicant’s and employee’s social media sites could lead to a claim of discrimination, even if the site is open to the public. Employers may dis­cover from the site that the applicant or employee is a member of a protected class; information they may not have otherwise known had they not viewed the site. That, coupled with an adverse employment action such as not selecting them for a job, a suspen­sion, termination, or even less severe discipline, may expose the employer to discrimination claims.

Employers risk violating the National Labor Rela­tions Act (NLRA)

The NLRA prohibits subject em­ployers from retaliating against employees who en­gage in “concerted activity.” “Concerted activity” can include situations where employees post on social media sites comments about their working con­ditions that are viewed and commented on by co-workers. If the employer disciplines or terminates an employee for those postings, then the employer may be found to have violated the NLRA.

Given the legal risks involved, it may be wise to sim­ply avoid the social media pages of job applicants and employees altogether. If you still want to view those sites, then limit the search to publicly avail­able pages. Do not request passwords from appli­cants and employees. Do not have a manager or HR person surreptitiously “friend” the person. Second, make sure the person viewing the site is not involved in making job related decisions about the applicant or employee. The person viewing the site should be trained and instructed to relay to the decision maker only information that is not related to a protected class (such as potential criminal activity).

Action Alert:

APRIL 30 IS THE DEADLINE FOR EMPLOYERS TO DISPLAY CONTROVERSIAL NLRB POSTER

By April 30, 2012, all private-sector employers that are subject to the National Labor Relations Act (NLRA) are required to display a poster titled “Employee Rights Under the National Labor Relations Act.” This poster needs to be displayed where other mandatory notices are posted. The posting requirements and the poster are available

At the NLRB website: http://www.nlrb.gov/poster.

The NLRA applies to a vast majority of private-sector employers. If you are unsure as to whether you must comply with this new posting require­ment, seek legal counsel or go to: http://www.nlrb.gov/faq/poster#t245n1702.

Note also that this poster requirement faces cur­rent legal challenges, so there is a possibility that the posting deadline could be extended.