UPDATE: On April 30, 2013, a three-member panel of the NLRB adopted the ALJ’s decision in this case. Read the board decision here (the ALJ decision and the Dish Network social media policy that got invalidated are attached).
The NLRB recently dealt another blow to the ability of employers to prohibit employees from engaging in disparaging speech on social media. On November 14, 2012, an Administrative Law Judge (“ALJ”) of the NRLB issued a decision striking down two rules in Dish Network’s employee handbook dealing with social media use. The first rule prohibited employees from making disparaging or defamatory comments about their employer. The ALJ found that the rule could unlawfully chill employees in the exercise of their Section 7 rights to engage in concerted activity. The second rule prohibited employees from engaging in “negative electronic discussion” during company time. This rule could effectively ban union activities during breaks and other non-working hours at the workplace, the ALJ concluded.
This was not the first time Dish Network’s social media policy came under fire. On May 31, 2012, the Acting General Counsel of the NLRB issued a memo criticizing provisions of actual social media policies. Dish Network was one of the companies whose policies were scrutinized in the memo. But while the memo was merely advisory, the latest ALJ ruling is not.
Recent NLRB rulings like this one leave behind a wake of confusion for employers. Provisions that are commonplace in employee handbooks, like non-disparagement rules, are being invalidated when applied in the social media context. To add to the confusion, the NLRB can seem inconsistent. For example, the May 30 memo approved Wal-Mart’s social media policy, which includes an instruction to “refrain from using social media while on work time” or on company equipment. However, the NLRB struck down Dish Network’s practice of banning social media activity on company time. What’s an employer to do? Few definitive answers are available, but here are a few ideas to help you survive in this uncertain environment:
- Stop treating social media as a novelty. Employers who still regard social media as a frivolous activity tend to use draconian measures (like categorical bans) to regulate it. The reality is that social media has become part of everyday life, nearly as much as cellphones and texting has. The point is not to restrict social media use per se, but to manage the consequences of such use. Which leads us to . . .
- Focus on outcomes. Dish Network very well could have intended its non-disparagement work rule to protect its brand and reputation rather than prohibit employee discussion about their work conditions or compensation. However, the rule did not clearly spell out its objectives. Tell employees the outcomes you want to avoid. If what you want to prevent are discriminatory remarks that create a hostile work environment, say so. This was one of the features of the Wal-Mart policy that the NLRB’s May 30 memo approved. In a section of the policy entitled “Be Respectful,” Wal-Mart states that if an employee decides to post complaints or criticism, they should ” 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 policy then listed examples of such conduct, such as “offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability,religion or any other status protected by law or company policy.”
- Stay positive. Rather than just banning certain kinds of conduct on social media, consider setting affirmative guidelines that employees should adhere to when communicating with others, whether on social media or other communication channels. For example, do you want your organization to be portrayed in a certain way? Then describe the image you would like your employees to convey to others in their communications when talking about the organization.
- It’s not over. The NLRB rulings are not the final word on how broadly employers may regulate social media activity of employees. Although ALJ decisions and even those of NLRB panels are more authoritative than guidance memos, courts have yet to weigh in.