In April 2020—when the economy was still largely shut down due to the COVID-19 pandemic—a Trader Joe’s employee used social media to criticize customer behavior. Among other things, the statements posted on the employee’s personal Facebook and Instagram pages complained that customers spent too much time “browsing around” and implored customers to “come in with a sense of purpose, get what you need, and get yourselves home.” The employee was terminated for violating the employer’s social media guidelines by not making clear that the employee was speaking on his or her own behalf, not the employer’s as well as for failure to comply with the company’s employee handbook expectation to “treat all customers with integrity.”
The National Labor Relations Board (NLRB) Division of Advice recently addressed whether that termination violated federal labor law. Under the “Jefferson Standard” (derived from a 1953 U.S. Supreme Court case), communications are not protected by federal labor law if they are so “disloyal, reckless, or maliciously untrue” that their intent was to disparage the employer’s product or service rather than appeal for support in a labor dispute. Applying this standard, the Division of Advice reasoned that although the social media posts did not directly disparage the employer, its products, or its services, the “insults toward the employer’s customers—the life blood of a retailer’s business—were likewise disloyal.” In addition to disparaging the employer’s customers, the Division of Advice concluded that the postings had no nexus to a labor dispute, even though the posts related to health and safety at work. The social media posts were therefore not protected by federal labor law.
In another recent case, the NLRB held lawful many provisions of an employer’s lengthy social media policy banning “inappropriate communications, even if made on your own time using your own resources.” The following prohibitions under the employer’s social media policy were found to be lawful:
· Disclosure of “confidential or proprietary information regarding the company or your coworkers;”
· Use of “company logos, trademarks, or other symbols in social media,” and use of “the company name to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person;”
· Posting of “photos of coworkers without their express consent;”
· Sharing of employee compensation information on social media; and
· Use of “blogs, SNS (Social Networking Sites), or personal Web sites to disparage the company, its associates, customers, vendors, business practices, patients, or other employees of the company.”
In ruling that the prohibition of using social media to disparage the company or others was lawful, the NLRB recognized the employer’s “legitimate justification, outweighing the rule's potential to interfere with the exercise of [the employee’s rights], in prohibiting its employees from disparaging it or its products to its customers and the public” and “in being able to depend on the loyalty of [its] employees.” Importantly, the provisions listed above were found to be lawful in part because the NLRB interpreted the various rules “in context” rather than “in isolation.” The employer’s social media policy was detailed, and each rule included explanations and examples. The NLRB reasoned that an “objectively reasonable employee” would not read the rules as prohibiting activity protected by federal labor law.
Considerations When Crafting and Implementing Social Media Policies
The National Labor Relations Act (NLRA) is a federal law that protects, among other things, the rights of employees to address conditions at work. The law has been extended to certain work-related conversations conducted on social media. Though recent NLRB decisions signal a trend towards greater protection of employers’ business interests (see the above examples), employers should still exercise caution when crafting and implementing social media policies. The following is a non-exhaustive list of what employers should do and not do when adopting and implementing a social media policy:
· The policy should not be a blanket prohibition on discussing work on social media.
· The policy should not prohibit employees from posting about or discussing information regarding their pay, benefits, or working conditions.
· The policy should not restrict employees from being able to connect with (or “friend”) each other on social media platforms.
· The policy should not be so broad as to prohibit the disclosure of any “employee information” on social media. However, prohibiting the disclosure of certain information, such as personal medical information or proprietary information and trade secrets is appropriate. However, the policy should include examples of what constitutes proprietary information or a trade secret.
· The policy should not require that employees identify themselves by name if they mention the employer or discuss their work on social media.
· The policy should not prohibit employees from using social media to contact traditional media (news reporters, newspapers, etc.) about work conditions.
· The policy should provide definitions and specific examples and should not vaguely prohibit “inappropriate conduct” on social media without further explanation and guidelines regarding what constitutes inappropriate conduct.
· The policy should be simple enough for a reasonable employee to understand yet detailed enough to withstand legal scrutiny.
· Social media and cultural norms about social media are constantly changing and evolving. Your social media policy should be periodically reviewed and updated, when appropriate.
Reviewing your employee handbook and talking to an employment lawyer to ensure that your social media policy adequately protects your business interests and can withstand legal challenges is a worthwhile investment.
Andrew Alder is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4879 or by sending an email to email@example.com.