The NLRB is increasingly scrutinizing employer social media policies and the actions employers take to regulate social media posts by their employees. According to the NLRB, the rationale for this scrutiny is the National Labor Relations Act, which “protects the rights of employees to act together to address conditions at work, with or without a union. This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter.”
Let’s take a deeper dive into the Chipotle case and look at the implications for club operators.
The National Labor Relations Board Administrative Law Judge (ALJ) hearing the case against Chipotle ruled in March 2016 that Chipotle violated the law when it used an unlawful social media policy to require the employee to delete tweets from a personal account and tell him not to engage in such action in the future. The ALJ paid particular interest to two provisions of Chipotle’s social media policy:
“If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”
“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”
The ALJ ruled that the first provision was okay but had problems with the second. It found that provisions that prohibit “derogatory statements” cannot be overly broad and impact employees’ rights to work together to improve their pay and working conditions. The ALJ commented on the false statements noting that “more than a false or misleading statement by the employee is required; it must also be shown that the employee had a malicious motive.”
So what do you do now? If you do have a social media policy, it is a good idea to have it reviewed by an attorney. If you modeled your policy after the social media used by a large company, don’t believe that makes you safe. The NLRB is increasingly finding elements of large company’s social media policies illegal. If you are just considering implementing a social media policy or want to review your current one for yourself, the NLRB General is helpful in detailing what constitutes a legal social media policy.
In a May 30, 2012 NLRB General Counsel Memo, the NLRB provided an example of a social media policy that passed legal scrutiny. If you like to read legal papers, you can download the entire memo, but to make it easier for you, we’ve provided the entire approved policy (PDF). Take a look at it, and see if it can help you stay on the legal side of the social media policy debate.