2. In May of 2013, the National Labor Relations Board (NLRB) issued its third report on employer social media policies. Of the seven cases reviewed, six focus on employer social media policies that offer examples of what not to do when trying to regulate employee activity on Facebook, Twitter, and other social media sites.

3. In the seventh case, the NLRB found the employer’s social media policy to be lawful under the National Labor relations Act (NLRA), which protects virtually all employers’ nonsupervisory employees, not just those represented by a union.

4. Section 7 of the NLRA grants employees the right “to self-organization, to form, join, or assist labor organizations … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under the Act, employers may not “interfere with, restrain, or coerce employees in the exercise of” those rights.

5. Generally, two or more employees acting together to address a collective employee concern is considered protected concerted activity.

6. However, a single employee acting on behalf of others, initiating group action, or discussing the matter with coworkers can also be engaged in protected concerted activity.

7. So a single employee sending out a tweet on Twitter or a group of employees posting on Facebook could be considered to be addressing a collective employee concern, making those social media interactions protected concerted activity.

8. In writing the most recent report on employer social media policies, NLRB Acting General Counsel Lafe Solomon often finds that the employer policies that try to restrict if or how employees talk about work on Facebook, Twitter, or other social media sites are “overly broad” and “ambiguous” and could be construed as trying to prevent protected concerted activity. Therefore, they violate employees’ Section 7 rights under the NLRA.

9. Here are some of the mistakes employers made that caused their social media policies to be unlawful according to the NLRB’s report: Instructing employees not to “release confidential guest, team member or company information” could be “interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment,” like wages or working conditions.

10. Admonishing employees to be sure that their posts are “completely accurate and not misleading and that they do not reveal non- public information on any public site” is an overly broad restriction “because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”

11. Cautioning employees that “[w]hen in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea[,]” is unlawful because “any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the Act.”

12. Prohibiting employee “from using the Employer’s logos and trademarks” when discussing posting photos and videos is unlawful because “employees would reasonably interpret these provisions as banning the use of photos and videos of employees engaging in Section 7 activities, including photos of picket signs containing the Employer’s logo.”

13. Warning employees to “[t]hink carefully about ‘friending’ co-workers” is unlawful because “it would discourage communications among co-workers, and thus it necessarily interferes with Section 7 activity.”

14. Asking employees to “[r]eport any unusual or inappropriate internal social media activity” is unlawful because it could be construed as “encouraging employees to report to management the union activities of other employees.”

15. The employer social media policy that the NLRB found “lawful,” and saw fit to include in its entirety as part of the report, was repeatedly praised for the examples it offered of prohibited behavior for specific circumstances.

16. Be Respectful. Lafe writes of the “Be Respectful” section of the policy: “In certain contexts, the rule’s exhortation to be respectful and ‘fair and courteous’ in the posting of comments, complaints, photographs, or videos, could be overly broad. The rule, however, provides sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct.”

17. Those “sufficient” examples included: Counseling employees to avoid posts that “could be viewed as malicious, obscene, threatening or intimidating” and;

18. Those “sufficient” examples included: Explaining that prohibited “harassment or bullying” would include “offensive posts meant to intentionally harm someone’s reputation” or “posts 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.”

19. Confidentiality. The same employer also got the confidentiality part of its social media policy right. Lafe wrote, “the Employer’s rule provides sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know- how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.”

20. Inappropriate Postings. The employer social media policy prohibited posts that “include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” The NLRB found that provision of the policy lawful because “it prohibits plainly egregious conduct, such as discrimination and threats of violence, and there is no evidence that the Employer has used the rule to discipline Section 7 activity.”

21. A ruling by the National Labor Relations Board (NLRB) in a case involving Costco in September 2012 makes it clear that employers who want to avoid labor disputes would be well served to schedule a sit-down with their legal counsel and take a close look at their existing social media use policies.

22. What prompts this suggestions is a September 7 ruling by the NLRB that essentially invalidates Costco Wholesale Corp’s employee policies covering the use of the Internet and, in particular, social media. The decision comes nearly two years after Local 371 of the United Food and Commercial Workers filed charges against Costco for perceived violations of the National Labor Relations Act.

23. The three-person NLRB panel deemed that the third largest retailer in the U.S. has employee policies in place that are “too broad” when it comes to the use of the Internet and social media. In fact, the panel ruled that policies outlined in the Costco Employee Agreement could effectively stifle its employees’ right to free speech under the Act.

24. Specifically, the electronic posting rule found in Costco’s employee handbook advises that company employees, “be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.”

25. And while that statement might sound reasonable on the surface (in fact, an administrative law judge ruled it so), the NLRB decided on appeal that employees could interpret the Costco policy as prohibiting Section 7 activity under the labor act.

26. As such, the board’s ruling determined that Costco’s edict regarding electronically posted materials by employees was too broad and didn’t exclude protected communications among workers. In addition, the panel struck down other Costco policies that are found in many corporate employee policy guidelines these days.

27. Among those were rules that prohibit workers from sharing private information about sick calls, leaves of absences, workers’ comp injuries, personal health information, payroll, credit card and social security numbers, as well as employees’ names, addresses, telephone numbers and email addresses.

28. Looking forward, what does the Costco decision mean for businesses small and large? It’s apparent that the NLRB is taking an active interest in how employers treat union and nonunion workers alike when it comes to social media use.

29. In fact — without pointedly using the terms social media, Facebook or Twitter — the NLRB essentially called into question any policy by a company that states employees can be disciplined or fired for posting comments online that may damage the company. Again, the NLRB is suggesting that such policies are overly broad.

30. The panel said Costco’s policy “does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to — among other things — certain protected concerted activities, such as communications that are critical of the respondent’s treatment of its employees.”

32. Risks created by employees Risks created by employers Ways to reduce risk

33. Disclosure of confidential and proprietary information of the employer and its customers Unauthorized statements or engrossments on behalf of the employer Statements that are harmful, offensive or inflammatory Damage to the employer’s reputation What employees may inadvertently say or do

34. Violations of law  Monitoring  Non discrimination statutes  Labor laws  Fair credit reporting statutes  Privacy claims Bad Publicity Mistakes Marketing  At work or play  Copyright and fair use

35. Adopt a social media policy  Following the guidelines we reviewed regarding the NLRB  We have model policy that can be utilized  Consider training employees

36. Be careful with monitoring employees/applicants or potential applicants  Diminish expectations of privacy  Be consistent and fair  Comply with applicable laws  Screen out irrelevant information for decision makers  Reserve the right to monitor

37. Be careful when using social media to promote business  Set clear expectations for employees  Require employees to use disclaimers  Retain control over content Seek legal advice

38. While there are a number of concerns and dangers when using social networking is utilized by employees, when social networking is used by employees, employers can use it to advantage if they have a carefully drafted policy.

39. Employees use too much time on networking sites during work hours, resulting in decreased productivity and focus Employees post confidential or proprietary information about the company on their social networking site Employees give recommendations or other commentary about coworkers, in violation of the company reference policy

40. Employees make negative, disrespectful or potentially harassing statement about colleagues or the company on these sites Employees make statements on personal sites that could be attributed to the company

41. With a properly drafted policy and with lawful periodic monitoring, employers can reduce many of these risks. Many organizations are beginning to realize that use of social networking sites such as blogs, twitter, Facebook and MySpace can work to their advantage.

42. Twitter, Facebook and the like give CEOs and senior leaders the power to communicate instantly and with great regularity and consistency to large, globally diverse teams including employees, contractors and vendors. This can help foster open communication, clarity of direction, goals and direct connection between individual team members and the leaders of the business.

43. Brenda is a disgruntled employee. Her boss John is new to Telecom industry and does not have a clue. And he is condescending to her and other employees when at work. Brenda is an avid user of Facebook. She is connected to several other employees at the company. She vents frequently to her Facebook friends. Recently, she made the following post: “I do not understand it, John is a bonehead. He treats me and other employees like crap– frequently talking down to us. I cannot believe the company hired him. I think it is time for me and others who have shared their concerns with me to approach John’s boss about his lack of knowledge and approach. I cannot work for this man and at this company much longer under these conditions. John has to improve.” Can John fire Brenda for her post?

44. It is unlawful to discharge employees who use a social network platform to engage in discussions, with other employees, related to working conditions. An employee’s criticism of supervisory actions, where they reflect several employees’ concerns, is protected. Discussions may be protected even when it includes related name-calling, criticisms, sarcasm, and swearing. An alleged employee defamatory statement, about a company or supervisor, may be protected. The statement only loses protected status if it is maliciously false. It is illegal for an employer to threaten to sue an employee engaged in a protected activity even when the employer has a reasonable basis for potential legal action.

46. Contact Information Mike Bourgon Synergy Human Resources 651-270-2281 mike@synhr.com Michelle Super Synergy Human Resources 612-281-9381 michelle@synhr.com