Many Corporate Social Media Polices Found Lacking by National Labor Relations Board

I’ve been reading over the memo issued by the National Labor Relations Board on May 30, 2012 with regard to corporate social media policies. It’s a fascinating look into how businesses try to navigate the dangerous waters of modern communication technology. It is clear that many companies have some work to do if they want to minimize the risk of legal challenges, but one company stood out for its well-crafted policy: Walmart(!) I know what you’re thinking, but read on for details…

It would be cheating to simply refer you to place where I first learned of this, so I’ve been working on my own analysis of it, I just haven’t been able to find the time until now. The HuffPo article does, in fact, summarize the impact of this memo pretty well, so I will incorporate most of it by reference. To give you the highlights: the NLRB issued this memo in response to requests from employers for clarification and guidance on their existing policies. Many companies have some form of instructions to employees about how they should conduct themselves on social media. They often go too far in restricting what the employees can and cannot say, even on their own personal accounts, in an effort to combat espionage, bad publicity and employee harassment.

It is increasingly common for people to have active profiles, independent blogs or other outlets for expression besides traditional media and the good, old-fashioned picket line. Companies want to make sure that statements and other expressions made via these new media do not interfere with their operations. Many employees also want to make sure that the things they enjoy doing do not cause them to lose their job. For example, one of the first things I asked my manager when I recently started my new job was whether they had a social media policy. I did not want my writing on this blog to be mistaken in any way for that of my employer. It turns out that they are quite lenient, but workers at other companies across the country, including here in Minnesota, face some fairly stringent restrictions that are probably unconstitutional and illegal.

It is difficult to apply too much weight to the findings contained within the NLRB’s 24-page document because they are mostly advisory opinions regarding the legality of various corporate policies. That said, it can be quite helpful for corporate HR managers and general counsels who are asked to draft employee handbooks to have language they can look to for inspiration and guidance. Since nearly all terms of service contracts and other standard form agreements are formed without any real negotiations between the parties, they are often cobbled together from pieces of other contracts that were challenged by consumers, either in court or through arbitration. Unlike ordinary contracts like labor agreements that unions and management spend extraordinary amounts of time negotiating, online contracts are created by one side and the user either agrees or goes elsewhere. This means that there is no way to root out unfair terms without extensive legal procedures, which are still often slanted toward the corporate drafter. The point is, the lawyers who draft these social media policies are usually not doing so as part of a negotiated process but are rather grabbing bits and pieces from other policies and trying them out.

Most of the time, this process works just fine. People read the policy (or not) and go about their business. But then some situation arises that leads to the employee being disciplined and the company points to the policy to justify its action. The NLRB’s memo attempts to forestall any negative action for behavior that is arguably protected by the NLRA, so that employees do not have to file a grievance or, in the worst case, lose their job because they were unaware that their behavior was actually legal.

Fortunately, the guidance provided by the memo does more than just highlight terms that are illegal, but also points out terms that are well-drafted. Compare the policy from GM–which the Board found contained several illegal terms–with the notably complaint policy from Walmart.

GM: “If you engage in discussion related to [GM], in addition to disclosing that you work for [GM] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site…”

Walmart: “…if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.”

The Board found the Walmart policy entirely within the confines of the law.  The rules, as recently revised, provides clear, non-legalistic and sufficiently specific language abot what is acceptable behavior. It also clarifies any ambiguities with examples so that a reasonable person could not construe them as prohibiting any protected activity. Rather than comment on individual line items, the Board attached their entire policy in full. It’s not long–which may also come as a surprise–at just over two pages. This shows that guidelines need not be complex or loaded down with extensive descriptions and caveats. There is no doubt that this will end up becoming a template that is copied and adopted by many other companies. At least until the next communications revolution turns everything on its head… again.

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About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Regulation and Rule-making, Rights and Civil Liberties, Social Networks. Bookmark the permalink.

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