Is Your Social Media Policy Up to Snuff?

Written: 5-Oct-2012 | | Filed under: Social Media

The law blawgs and legal firm newsletters have been alight the past couple of weeks with the news of the National Labor Relations Board (NLRB) September 7 decision essentially throwing out Costco’s social media policy. The company’s policy prohibited employees from electronically posting statements that “damage the Company… or damage any person’s reputation,” which are provisions I suspect you might find in many company social media policies.

(Maybe why the lawyers are going so crazy trying to get the word out to their clients?)

The problem is this: Section 7 of the National Labor Relations Act (NLRA) protects workers’ rights to “engage in concerted activities” for the purpose of organizing for collective bargaining (unionization) or for other “mutual aid and protection.” In other words, it’s OK for employees to talk smack about their employer, including specific managers and supervisors, as long as the talk can be construed as being for the purpose of improving their working conditions.

Here’s a quick example. If I complain to my friends that my pay is too low because the company is run by a bunch of cheapskates and ask for their advice on what to do, I could get in trouble for bad-mouthing the company and its management. If, on the other hand, I made the exact same statement to a bunch of my co-workers, it would likely be considered “protected activity” under Section 7. I’m no longer simply grousing to my buddies, now I’m engaging in concerted activity with my fellow workers trying to improve the conditions of our job.

Thing is, under the law, it doesn’t matter if you simply strike up a conversation over lunch, meet up at a union organizing rally or post an update to your co-workers on Facebook. It’s all protected activity, and an employer social media policy that’s too broad may unintentionally violate Section 7.

In the case of Costco, if their policy had specifically excluded Section 7 protected activities, and/or had offered examples illustrating the specific types of comments that would or would not be allowed, it might have stood up to the challenge. As it was, though, it the prohibition was considered overly broad and was struck down.

What does your social media policy say? Does it contain an explicit exclusion of Section 7 “concerted activites” and/or specific examples? If not, you should probably consider meeting with your employment law attorney to update your policy. (And if you don’t actually have a social media policy in the first place, you should definitely meet with your lawyer to draft one, ASAP!)

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