Response to Another NLRB Social Media Question.

As is often the case, we received hordes of fact-specific questions about what policies are being challenged by the NLRB, and what language has been approved regarding professional behavior, use of social media, courtesy and privacy. 

I am tempted to answer… (1) everything, and (2) beats me.

I can also provide that hated lawyer answer, “each situation is very fact-specific,” which unfortunately is true.

Some of my earliest posts listed various policies found objectionable or acceptable.  We are not sure what effect the DC Circuit decision finding the current board unlawful will have, but there are many decisions and NLRB Fact Sheets  (three NLRB Reports are online) to review for examples.

In response to requests, here is a re-typed version of one policy that the NLRB  found lawful in a specific situation.  DO NOT COPY AND USE THIS POLICY.  Remember my fact-specific remark!  We provide this only as another piece to consider in crafting your policies.

These are areas where counsel really is need.  I’m serious.


Social Media Policy

Updated: May 4, 2012

At [Employer], we understand that social media can be a fun and rewarding way to share your lifeand opinions with family, friends and co-workers around the world. However, use of socialmedia also presents certain risks and carries with it certain responsibilities. To assist you inmaking responsible decisions about your use of social media, we have established theseguidelines for appropriate use of social media.This policy applies to all associates who work for [Employer], or one of its subsidiary companiesin the United States ([Employer]).Managers and supervisors should use the supplemental Social Media Management Guidelines foradditional guidance in administering the policy.


In the rapidly expanding world of electronic communication, social media can mean many things.  Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.


The same principles and guidelines found in [Employer] policies and three basic beliefs apply toyour activities online. Ultimately, you are solely responsible for what you post online. Beforecreating online content, consider some of the risks and rewards that are involved. Keep in mindthat any of your conduct that adversely affects your job performance, the performance of fellowassociates or otherwise adversely affects members, customers, suppliers, people who work onbehalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinaryaction up to and including termination.


Know and follow the rules

Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer]Information Policy and the Discrimination & Harassment Prevention Policy, and ensure yourpostings are consistent with these policies. Inappropriate postings that may includediscriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawfulconduct will not be tolerated and may subject you to disciplinary action up to and includingtermination.

Be respectful

Always be fair and courteous to fellow associates, customers, members, suppliers or people whowork on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open DoorPolicy than by posting complaints to a social media outlet. Nevertheless, if you decide to postcomplaints or criticism, 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. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation orposts 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.

Be honest and accurate

Make sure you are always honest and accurate when posting information or news, and if youmake a mistake, correct it quickly. Be open about any previous posts you have altered.Remember that the Internet archives almost everything; therefore, even deleted postings can besearched. Never post any information or rumors that you know to be false about [Employer],fellow associates, members, customers, suppliers, people working on behalf of [Employer] orcompetitors.


Post only appropriate and respectful content


Maintain the confidentiality of [Employer] trade secrets and private or confidentialinformation. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports,policies, procedures or other internal business-related confidential communications.


Respect financial disclosure laws. It is illegal to communicate or give a “tip” on insideinformation to others so that they may buy or sell stocks or securities. Such onlineconduct may also violate the Insider Trading Policy.


Do not create a link from your blog, website or other social networking site to a[Employer] website without identifying yourself as a [Employer] associate.


Express only your personal opinions. Never represent yourself as a spokesperson for[Employer]. If [Employer] is a subject of the content you are creating, be clear and openabout the fact that you are an associate and make it clear that your views do not representthose of [Employer], fellow associates, members, customers, suppliers or people workingon behalf of [Employer]. If you do publish a blog or post online related to the work youdo or subjects associated with [Employer], make it clear that you are not speaking onbehalf of [Employer]. It is best to include a disclaimer such as “The postings on this siteare my own and do not necessarily reflect the views of [Employer].”


Using social media at work

Refrain from using social media while on work time or on equipment we provide, unless it iswork-related as authorized by your manager or consistent with the Company Equipment Policy.Do not use [Employer] email addresses to register on social networks, blogs or other online toolsutilized for personal use.


Retaliation is prohibited

[Employer] prohibits taking negative action against any associate for reporting a possibledeviation from this policy or for cooperating in an investigation. Any associate who retaliatesagainst another associate for reporting a possible deviation from this policy or for cooperating inan investigation will be subject to disciplinary action, up to and including termination.



Media contacts

Associates should not speak to the media on [Employer’s] behalf without contacting theCorporate Affairs Department. All media inquiries should be directed to them.

For more information

If you have questions or need further guidance, please contact your HR representative.



About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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