This post was contributed by Jennifer E. Will, Esq., a Member in McNees Wallace & Nurick LLC’s Labor and Employment Law Practice Group.

You may recall a prior entry on this site detailing the National Labor Relations Board’s Acting General Counsel’s first social media report. The Acting General Counsel’s second report was issued just six months later, which highlights how quickly the issues surrounding social media in the workplace are developing. It is important for private sector employers to remember that the National Labor Relations Act ("Act") applies, whether or not employees are represented by a union.

According to the new report, the following common policy provisions may be unlawful because they "chill" employees’ rights under Section 7 of the Act:

  • Employees are prohibited from making disparaging comments about the company through any media, including online blogs, other electronic media or through the media.
  • Employees should generally avoid identifying themselves as the company’s employees, unless there is a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.
  • Insubordination or other disrespectful conduct and inappropriate conversations are subject to disciplinary action.
  • Employees are prohibited from using social media to engage in unprofessional communications that could negatively impact the company’s reputation or interfere with the company’s mission or unprofessional/inappropriate communications regarding members of the company’s community.
  • Employees are prohibited from disclosing or communicating information of a confidential, sensitive, or non-public nature concerning the company to anyone outside the company without prior approval of senior management or the law department.
  • Employees are prohibited from using the company’s name or service marks (trademark, copyright, logo, etc.) outside the course of business without prior approval of the law department.
  • Employees who identify themselves as employees of the company must expressly state that their comments are their personal opinions and do not necessarily reflect the company’s opinions.

We have discussed this many times before in the last year, but it is worth repeating: now is the time to review and narrowly tailor your policies to ensure compliance with rapidly-developing Board case law. With carefully crafted policies, you can still protect the your organization’s reputation and intellectual property; enforce attendance and harassment policies; and do so, without infringing on employees’ right to engage in protected concerted activity.

Even with a state-of-the-art social media policy, you should still think twice before firing that employee who takes to Facebook to solicit her coworkers’ sympathy about her supervisor, job responsibilities, lost promotion, etc.