‘Virtual water cooler’ muddles work policies

Attorneys offer tips on drafting, revising social media rules

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As the National Labor Relations Board revisits past rulings regarding social media policies, employers should take note of their right to regulate employee activity on social media — both in and out of the work space.

In June, the Supreme Court ruled that members of the NLRB — a federal agency overseeing management-employee disputes — may only legally be appointed by the president without congressional approval if the Senate has not met for a minimum of 10 days.

The decision rendered President Barack Obama’s appointment of three NLRB members in January 2010 unconstitutional — and effectively invalidated the 436 rulings decided by the board members over a period of 18 months.

Although the partisan makeup of the newly appointed board — identical to that of the defunct one — makes it unlikely that the decisions will change, the skirmish has brought renewed attention to the board’s controversial rulings on social media policies.

Title VII of the National Labor Relations Act of 1935 prohibits employers from regulating “the discussion of terms and conditions of employment with other employees.”

This provision presumptively protects both positive and negative speech regarding work.

In the age of social media, however, employee conversations often do not remain between workers, but are held on platforms such as Facebook and Twitter that are visible to all Internet users. Consequently, employers have tried to limit negative conversation through stringent — and sometimes unlawful — social media policies.

“Social media has become a sort of virtual water cooler where employees talk about work,” explains Brian Balonick of Buchanan, Ingersoll & Rooney, a legal firm in Downtown. “That’s making it challenging for employers to draft social media policies that are both effective and lawful.”

In the midst of this changing landscape, labor attorneys offer advice for employers looking to draft or revise their social media policies.

“First of all, employers need to know that creating effective, lawful policies is not a one-size-fits-all exercise,” says Mr. Balonick.

“There is a fine line between work discussions and unprotected discussions, and it changes with the industry and the business.”

The NLRB, then, allows for employer regulation of purely personal attacks on employers, false comments about company products or disclosure of company trade secrets.

However, employers are warned not to draft overly broad prohibitions of unprotected speech, for fear that they will inadvertently include work-related discussions.

The NLRB has indeed struck down policies prohibiting the release of “confidential information” or “disloyal conduct,” claiming that this speech could be interpreted to include employee office numbers or the advertisement of a rival company’s product.

“You need to clearly define what you’re regulating instead of leaving it to ambiguity,” says William Bevan III, senior counsel with Downtown-based Reed Smith LLP. “If a policy is vague or overbroad, it’s going to go down.”

Rather than focusing on banishing certain kinds of speech, employers are encouraged to regulate the work spaces and times in which social media are used.

“Employers have a right to say that you can’t use social media while you’re at work or on a computer provided by the company,” explains Terri Patak, an employment attorney with Dickie, McCamey & Chilcote in Market Square.

Above all, employers should revisit their policies as future NLRB rulings continue to outline the legal regulation of social media discussions.

“If you’re an employer, you should be proactive about reviewing your policies,” urges Mr. Balkin. “Don’t wait until it’s too late.”

Rocio Labrador: rlabrador@post-gazette.com or 412-263-1370.

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