A business's success strategy should include ways to protect its confidential, proprietary and trade secret information from its competitors. One way to guard such information is to establish policies that limit what the company's employees may communicate to others. Recently, however, the National Labor Relations Board's Acting General Counsel (AGC) has taken aim against numerous so-called social media policies. The AGC has determined that many such policies run afoul of the National Labor Relations Act (NLRA).
The NLRA grants employees the right to engage in protected, concerted activities for "mutual aid or protection" and freedom of association. These rights apply whether or not the workplace is unionized. An employer's interference with such rights may constitute an unfair labor practice.
With the growing number of people using social media like Facebook, Twitter and LinkedIn, the astute business should consider policies that address its employees' use of social media resources without violating the NLRA. Drafting social media policies that pass muster with the AGC has been and is a challenging task, however. In a memorandum issued on May 30, 2012, the AGC highlights the importance of a well-drafted social media policy, while concluding that many current policies that the AGC has revised are unlawful because they violate, or potentially violate, the NLRA.
For example, the AGC concluded that the social media policy of a nationwide retailer that encouraged employees to "use technology appropriately" by requiring that the employees not release confidential customer, co-employee or company information violated the NLRA. He found that the policy would "reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment," a right protected under the NLRA.
Another social media policy was found to be unlawful where employees were instructed to be sure that their electronic posts are "completely accurate and not misleading and that they do not reveal non-public information on any public site." The AGC concluded that the term "completely accurate and not misleading" is overbroad because it would reasonably be interpreted to apply to discussions about the employer's labor policies and its treatment of employees. Such interaction among employees is protected under the NLRA.
Another policy that was reviewed, one that cautioned employees that they should first consult with their employer when they have any doubt about the appropriateness of posting company information, was determined to violate the NLRA. The AGC concluded that "any rule that requires employees to secure permission from the employer as a precondition" to engaging in protected activity violates the NLRA.
What can an employer do to protect its confidential, proprietary and trade secret information? An employer should not avoid developing a social media policy that appropriately limits employees' e-expression, but should be careful to draft a policy that does not run afoul of the NLRA, at least in the opinion of the NLRB's legal counsel. The AGC provided an example regarding an acceptable social media policy. Here are guideposts to developing an acceptable social media policy:
• Employers need to review their desired policies to clearly express legitimate business interests of the employer.
• The employer should consider and list specific examples of confidential, proprietary, and trade secret information that are off limits from disclosure.
• The policy should set forth why the restrictions are necessary.
• The policy should set forth that it is not intended to restrict the rights that employees have under the NLRA. However, simply setting forth that the social media policy is not intended to violate the NLRA will not save the policy from being unlawful if it otherwise chills protected rights of employees.
The AGC Memorandum raises more questions than it answers, but this much is clear: The astute business will not put its head in the sand and simply ignore the risks of employees' use of social media. It will develop a fair and balanced policy that does not overreach into the arena of employees' protected activities.