Free Speech v. Social Media: Is Your Policy Legal?

Cayce MyersPerhaps no group of people possesses more sensitive, important and potentially damaging information about an organization than its employees.  Given this concern over social media image, organizations are crafting social media policies that limit what employees can say about their employers online.  Since PR practitioners are often viewed as social media gurus, crafting these social media policies may fall to public relations professionals.

Naturally the first instinct for practitioners is to protect an organizations’ image.  Oftentimes this means crafting social media policies that attempt to control any content discussing the organization by restricting what employees can actually say about their employer.  However, practitioners need to be aware that this first PR instinct could be illegal.  Since 2010 the National Labor Relations Board (NLRB), a federal agency that regulates union and non-union work practices, has actively engaged in striking down social media policies as unlawfully restrictive on employee speech.  The main issue for the NLRB is that many social media policies disallow employee discussion over work related issues such as unionization, wages, management issues, and employee grievances that are protected under the National Labor Relations Act (NLRA).

Examining the recent NLRB decisions regarding social media policies there are five main issues all practitioners should be aware of.

  1. The Policy Must Be Specific and Easily Understandable for Employees:  This is perhaps the biggest problem with social media policies according the NLRB.  Oftentimes organizations’ fear of leaving something out of a social media policy means they use language in the policy that is overly broad or vague.  Policies that ban employees from engaging in social media speech about an organization that is “disparaging,” “inappropriate,” “disrespectful” or “unprofessional” have all been determined overly broad by the NLRB.  The issue with these catchall terms is that conceivably an employee reading the policy could interpret it as preventing them from engaging in work-related discussions regarding wages, union issues, management complaints, or unfair work-related treatment, which are protected under federal law.  Even policies that provide specific examples of speech that is prohibited within the social media policy can still be considered vague by the NLRB if the examples leave too much to employee interpretation.  This is why clarity, specificity, and concrete examples of allowed and disallowed speech is important for any social media policy.
  2. Employers Cannot Hide Their Employees:  Some organizations attempt to prevent the public from connecting the organization to their employees by having policies that ban employees from saying where they work on their social media accounts.  The NLRB has found most of these policies violate the NLRA.  The ability of a person to say where they work is an important part of employee speech under the NLRA.  A major problem with this type of policy is it is often written in connection with policies that permit employees to identify where they work only when they check with management first or if their speech was not critical of the organization.  One exception to this trend is that the NLRB did find a policy preventing employees from identifying their employer valid when the social media policy was carefully crafted not to prevent NLRA protected speech.  In that particular policy, employees could not identify where they worked on their social media accounts only when they were engaged in personal conversations and were prevented from distributing promotional information about the organization.  Because this clause was so carefully written, the NLRB did not find the social media policy invalid.  However, the big take-away here is that policies that try to prevent employees from saying who they work for are difficult to defend and should be carefully written and examined before being enforced.
  3. There are Limitations to Management Power:  Some organizations think an easy way to monitor employee social media speech is to have them check with management before they say anything.  However, this type of social media policy is a clear violation of the NLRA.  The NLRB fears that this type of “checking with management” requirement can chill important workplace speech which may oftentimes be critical of management.  The idea of the NLRA is that workers have the ability to discuss with co-workers their grievances, union issues, and workplace concerns without fear of reprisal from management.  A policy that places managers as regulators of this speech undermines the original intent of the NLRA and NLRB.
  4. Organizational Logos Are Not Totally Under Company Control:  This is perhaps one of the most controversial aspects of the NLRB’s stance on social media policies.  Organizations pay money and spend years developing an organization’s image.  Corporate logos, names, and service marks are all legally protectable under federal copyright and trademark laws.  Organizations own the rights to these copyrights and trademarks and have the ability to say who can use them, how they can be used, and when they cannot be used.  Under these laws it seems logical that a social media policy forbidding employee use of copyright and trademark logos without prior approval of an organization would be legal.  Think again.  According to the NLRB an organization cannot forbid its employees from using logos, names and service marks because employees may need these copyrights and trademarks to disseminate literature concerning workplace protests.  The justification of this policy is that intellectual property law is designed to protect people from profiting illegally from a trademark or copyright.  However, allowing employees to use these pieces of intellectual property to communicate workplace grievances does not involve profit— it involves NLRA protected rights.
  5. Disclaimers Cannot Save Bad Social Media Policies:  Perhaps you’re thinking that a social media policy can be saved by tacking on a disclaimer at the end saying that it is not designed to infringe on NLRA protected speech.  Wrong.  The NLRB says disclaimers or “savings clauses” that attempt to limit previous listed policies are confusing to employees.  These clauses require the employee to read and understand the previous policies with the understanding that these policies are only limited to non-NLRA protected speech activities.  Because this disclaimer is usually found at the end of a document, employees may not fully understand its applicability to earlier stated policies.  As has been previously stated, clarity and understandability of social media policies is important for the NLRB.  If the policy wants to make clear it is excluding NLRA protected activities it needs to be more specifically said in context with stated policies.

While these five areas of the law are not exhaustive of all of the potential issues affecting social media policies, they represent the most often cited issues within NLRB decisions.  The law affecting social media is in a state of flux and new NLRB issues will certainly arise in the future.  Whether a practitioner is crafting a social media policy alone, with the aid of the legal department, or with the ear of management, it is important to be aware these issues within the policy.

Social media policies actually present some unique opportunities for practitioners to engage with legal departments and management in a significant way.  Since understandability is perhaps one of the most important aspects of these policies, practitioners can uniquely provide insight on the best communication techniques to avoid a policy becoming overly vague, easily misunderstood, or unnecessarily bogged-down with corporate-speak or legalese.  Perhaps more importantly, understanding these five issues affecting social media policies will allow organizations to craft a legally sound policy that protects organizational interests while preserving employees’ rights.

 

Cayce Myers, J.D., LL.M., serves as research editor for IPR in the area of public relations law.  He is a doctoral candidate at the University of Georgia’s Grady College of Journalism and Mass Communication..  . 

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