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.
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.
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.