It is now commonplace for employers to adopt social media
policies pertaining to its employees. These policies can help avoid
disputes after an employee departs and help set standards to
protect a company's public relations.
For example, a federal district court in Pennsylvania is currently
presented with a dispute between a company and its former employee
related to ownership of a personal LinkedIn account created by the
employee during his employment by the company. Not long ago, a
California court was presented with a similar factual scenario,
where a company sued its former employee for not turning over a
Twitter account created during his employment. In both cases, the
employer argued that primary purposes of the accounts were to
promote the company and amass customer lists. The employees, on the
other hand, argued these were personal accounts that should belong
to the individual. Neither case involved a social media policy,
which could have addressed the issue of ownership rights in social
media accounts used partially or solely for promotion of the
company.
Social media policies can also be useful in outlining employee
duties such as using a company's name in social media, using
disclaimers that personal posts are not endorsed by the company,
acting professionally when using social media to connect with
customers, and not sharing certain confidential information about
the company. A recent report issued on January 24, from the
National Labor Relations Board's (NLRB) acting General Counsel,
Lafe Solomon, has called into question just how broad these
policies can be without violating federal labor laws.
Solomon's report analyzes several recent decisions from the
NLRB which found employers' social media policies (including
those related to non-disparagement, confidentiality, use of
logos/trademarks, and disclaimers) to be overbroad and unlawful
because the policies restricted employees' rights under the
National Labor Relations Act (NLRA). Sections 7 and 8 of the NLRA
protect employees' rights to engage in "concerted
activity" for collective bargaining or "other mutual aid
or protection." The NLRB has held that an employee is able to
post on social media sites statements that criticize or comment on
the "terms and conditions of employment" as long as the
posting employee is doing so directed at or on behalf of one or
more employees; employers cannot get around this by including an
overbroad non-disparagement policy. Similarly, a company cannot
prohibit an employee from using a company name or logo "while
engaging in protected concerted activity, such as [the distribution
of] electronic or paper leaflets. involving the terms and
conditions of employment." The NLRB further determined that
requiring disclaimers in relation to any mention of the company is
a significant burden on the employees' NLRA rights.
The NLRB has additionally held that simply incorporating an NLRA
savings clause (i.e. stating that the policy is not intended to
violate or abrogate any NLRA rights) will not protect an overbroad
social media policy. Accordingly, employers are encouraged to draft
their social media policies narrowly and tailor them toward
protecting legitimate business interests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
