Employer’s Social Media Policy and Savings Clause Are Okay
For the past two years, private employers have been struggling to understand just what the NLRB expects of them when it comes to Social Media Policies (among other things – confidential investigations; employment-at-will; off-duty access). The NLRB General Counsel has even issued three separate Memos attempting to outline just what is and what is not acceptable when it comes to Social Media Policies. (See our Blog post on this topic.) Now the NLRB has added some more guidance that will be helpful to employers. The NLRB’s Division of Advice, the internal division that gives legal advice to NLRB Regional offices on whether to issue complaints, has issued an Advice Memorandum that not only finds an employer’s Social Media Policy acceptable (including its “savings clause”) but also finds that the termination of an employee for violation of the policy to be lawful.
Social Media Comments about Customers Get You Fired
This Advice Memo arose out of a charge filed by an employee who had been fired for posting a lewd and vulgar comment about a customer who had called the employee a “faggot.” Another employee then posted a sarcastic comment about the employee’s comment. The questions to be answered were: Was the employer’s Social Media Policy overly broad on its face? Was the activity protected concerted activity under the NLRA? Was the firing of the employee for posting the comment lawful? The Advice given was: No – No – Yes.
This Policy Is Okay
Here is the employer’s policy that was found to be acceptable:
Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities . . . .
DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age, race, religion, sex, sexual orientation, gender identity or expression, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated by the Company. . .
DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) of information you use and accurately cite copyrighted works you identify in your online communications. Do not infringe on Cox logos, brand names, taglines, slogans, or other trademarks.
The Policy was lawful because it met the tests that the NLRB has established to determine if a policy unlawfully restricts employee rights under the NLRA to engage in “concerted activity for their mutual aid and protection.” Those tests are:
- A rule is clearly unlawful if it explicitly restricts Section 7 protected activities. (e.g., “Do not post comments favoring unions.”)
- If the rule is not so explicit, it would still be unlawful when:
- employees would reasonably construe the language to prohibit protected activity;
- the rule was issued in response to union activity; or
- the rule has been applied to restrict the exercise of protected rights.
Rules that are ambiguous regarding their application to protected activity, and contain no limiting language or context that would clarify to employees that they do not restrict their protected rights, will be found to be unlawful.
In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, so that they would not reasonably be construed to cover protected activity, will not be found to be unlawful. In this case, that’s what saved the employer’s Social Media Policy.
“Savings Clause” Helped Save the Day, Too
The employer’s policy leads off with a “savings clause” that indicates that the policy should not be taken to interfere with employee rights. Savings clauses have been used by employers in the hope of “saving” a policy that might be seen as unlawfully overbroad, but recent rulings by Administrative Law Judges have held that savings clauses are ineffective. But here in this Advice Memo a savings clause that is more explicit was found to be helpful in the analysis that the policy provided sufficient detail so that no reasonable employee would understand that engaging in protected activity was prohibited.
Personal Venting at a Customer Was Not Protected
In finding that the firing of the employee was lawful, the Division of Advice reasoned that the comments about the customer were personal frustration and not related to wages, hours or working conditions and that the co-worker’s related posting was not solicited and was only in response to the other employee’s unprotected comment about the customer.
The Lessons for Employers
The NLRB seems to have been stung by its previous aggressive positions on social media and has for some time been trying to explain what is acceptable and what is not – with concrete examples of policies that it finds to be lawful. Although the Advice Memo does not carry the force of law, here are some things to consider:
- Understand that even though no union is involved or mentioned, employees are still protected under the NLRA;
- Review current Social Media Policies and adopt language from these NLRB guidance Memos that fit your needs;
- A “savings clause” at the beginning of the policy like the one in this case can be helpful and can save the day;
- The more detail the better when describing in your policy what is not allowed;
- When deciding to take action for prohibited use of social media take the time to investigate what was said, who said it and whether it related to wages, hours or working conditions; and
- Stay up to date on the developments in this area because things are changing rapidly.
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
