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Avoiding legal challenges to employer social media policies

Legal News Reporter

Published: November 27, 2017

From a Facebook post of a recent office party to a negative tweet about one’s supervisor, businesses are often the subject of employee social media posts.

But when do the tweets and posts cross the line and become the basis for termination? It’s an important question that many legal experts say should be addressed in a company’s social media policy.

But crafting a policy that is enforceable is not as simple as it sounds, said attorney Melanie Webber, a partner in the Cleveland office of the management-side labor and employment law firm Fisher Phillips.

“I do think it’s imperative in today’s world for businesses to have these policies, but they must be carefully drafted, keeping in mind that the National Labor Relations Act and its provisions allowing employees to speak openly about terms and conditions of employment apply to both union and nonunion employers.

“These policies also cannot be created in a vacuum,” said Webber. “They must align with other company policies and they cannot be vague and overly broad. Key terms need to be consistently defined in all employer policies and rules.”

A case in point, the August 2016 decision by the National Labor Relations Board in Chipotle Services LLC d/b/a Chipotle Mexican Grill, in which a three-member panel affirmed Administrative Law Judge Susan A. Flynn’s decision that the company’s “Social Media Code of Conduct,” which prohibited workers from “posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements,” violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by stifling the ability of employees to organize and engage in other “protected concerted activity” through their social media accounts.

The case dates back to 2015 when the Pennsylvania Workers Organizing Committee filed charges on behalf of Havertown, Pennsylvania Chipotle employee James Kennedy, who was fired after he refused to stop circulating and collecting signatures on a petition that claimed employees were not being given proper meal and rest breaks.

Prior to the petition, Kennedy was asked and complied with a request by managers to remove tweets criticizing the company’s wages and policies.

Judge Flynn issued her decision in March 2016 in favor of Kennedy.

On review, the board ordered the company to reinstate Kennedy to his former job or an equivalent one, compensate him for lost earnings and benefits and strike his termination from its records.

The board also determined that Chipotle’s social media and workplace policies were too broad, thus they violated portions of the NLRA, including Section 7, which guarantees workers the right to engage in “protected concerted activity.”

It also found the company violated the NLRA by ordering Kennedy not to circulate his petition and firing him because he refused to comply.

However, a majority of the panel reversed Judge Flynn’s finding regarding Kennedy’s tweets, determining the company did not violate the NLRA by requiring him to delete the tweets from his account.

“The board determined that Kennedy’s tweets were not ‘concerted activity,’ likely because they were individual gripes as opposed to comments made on behalf of others,” said Webber.

The 5th Circuit Court of Appeals has declined to review the case.

“The Chipotle decision is one of the many decisions issued by the Obama-appointed board, which sided with employees in the area of protected concerted activity,” she said. “We do expect the pendulum to swing in the other direction once there is a new board in place.”

Webber said there are a number of key takeaways from the Chipotle decision and others regarding social media policies.

“One of the problems in the Chipotle case is that the manager was relying on an outdated policy when he confronted the employee about his social media conduct,” said Webber. “Employers must ensure that when they update their policies that all managers and supervisors are aware of the updates and receive training on the changes.”

Kevin Day, an associate in the Youngstown office of Harrington, Hoppe & Mitchell said workplace policies must avoid using broad language.

“For example, an employer cannot simply forbid the dissemination of ‘misleading or disparaging’ information on social media,” said Day. “However a policy forbidding the spread of hostile and malicious statements that are designed to harm a company’s reputation would likely pass the board’s muster.”

Webber said the words ‘confidential information’ are one of the top phrases that can get an employer in trouble if not carefully explained.

“The test under the NLRA is whether an employee could reasonably construe the term or phrase to prohibit them from engaging in ‘protected concerted activity,’ such as activity pertaining to discussions about wages and benefits,” she said.

“Adding language to define that the dissemination of confidential information includes information like trademark and company business secrets, as opposed to only saying ‘confidential information’ can go a long way to clarifying that the policy is not intended to prohibit them from disclosing information about the terms and conditions of their employment.”

Webber said many employers also are unaware that employees are allowed, under the NLRA, to post false information as long as it is not done maliciously.

“If an employer wants to prohibit such postings, they need to prohibit the posting of ‘maliciously false information,’ to pass board scrutiny,” she said.

“An employer cannot have blanket policies prohibiting employee use of its logos and trademarks either,” she said. “For instance, employees are allowed to use a company’s logo on their shirts when picketing the establishment.”

When drafting workplace policies she advises employers to add disclaimers that go beyond statements such as “this policy does not prohibit ‘protected concerted activity’ under Section 7 of the NLRA.

“As found by the board in the Chipotle case, a general disclaimer like that will not cure problems with policies that are overly broad,” said Webber. “I would recommend more specific wording such as ‘this policy does not affect an employee’s rights to discuss terms and conditions of employment with co-workers or third parties.’”

Webber said having a sound policy is not enough. She said businesses must train supervisors and managers so they understand how to implement the rules. She also advises employers to have their policies reviewed by a labor and employment attorney.

Day said the good news is that employers can still ban unlawful conduct by employees and protect their company’s trade secrets and other assets.

“The NLRB ruled in the Chipotle decision, as it has in the past, that a policy that prohibits the disclosure of trade secrets or proprietary company information does not run afoul of the National Labor Relations Act,” said Day. “Additionally, the Act further would not prohibit a company from having a policy that prohibited employees from engaging in illegal activity on their social media accounts.”

For companies that don’t have a social media policy, Day recommends they rethink that strategy.

“The issues that social media present for employers are in their infancy and they will only continue to grow as more and more people rely on social media as one of their main sources of communication with others,” he said.