As we’ve blogged about in an earlier post, Acting General Counsel Lafe Solomon has issued the third in a series of “Reports” regarding social media policies, in which he addressed overly broad restrictions regarding confidentiality, standards of decorum on a website, fraternization with fellow employees, the airing grievances online, “non-public” information, “disparaging or defamatory” comments, contacting government agencies, and a requirement that employees report “unsolicited or inappropriate electronic communications.” All of these restrictions were found unlawful under Section 7 of the NLRA, which protects the right of employees generally, whether organized by a union or not, to engage in protected concerted activity for their mutual aid and protection. Included with the Report was a “Model Social Media Policy” that had been approved by the Acting General Counsel after several revisions by the employer. A number of employers subsequently have asked whether they should simply shelve their existing social media policies and adopt the so-called “model.” We think the answer is “no,” and that in most cases the better practice is likely to be that a company retain its own social media policy, provided that it complies with existing NLRB law.
First, though any guidance provided by the General Counsel is worthy of note and often very helpful, it is not the final word regarding whether particular language in any policy violates the NLRA. That is the province of the five-Member NLRB, which is charged with responsibility for determining national labor policy as set forth in the statute. Sometimes the NLRB Members agree with the General Counsel’s view of what the NLRA requires. Sometimes they do not. So while the Acting General Counsel’s guidance should be carefully considered, it is not the final word, and companies that believe the “model” poses a particular hardship on their business should consult with counsel to discuss the problems that could arise under the “model” and how to lawfully address those problems.
Secondly, in our experience to date, companies fare better when the social media policies they write reflect the particular needs, culture, and values of the organization. Though companies share many issues in common regarding social media, invariably there are differences. For example, some company’s products are highly regulated in significant ways by statutes and regulations in addition to the NLRA. Securities, health care and life insurance are just a few such industries that come to mind, and there are others. In each instance, the employer will want to make sure that any restrictions regarding social media are consistent with these “other” regulatory requirements. Though not without exception, the Regional Offices of the NLRB generally have been amenable thus far to arguments that certain industries are subject to additional or heightened regulatory scrutiny. Moreover, social media policies that embrace the particular culture and values of your organization often are better understood and appreciated by the employees, enhancing the likelihood of acceptance, and more importantly, compliance.