As the NLRB Cracks Down, It’s Time For a Refresh on Social-Media Policy

The National Labor Relations Board has been ordering some prominent brands to scale back social-media policies that limit what workers can say about their organizations online—which could put communicators who handle such policies on edge.

The NLRB has instructed Costco, General Motors and Target, among others, to change the language in their social policies, and have issued the reinstatement of workers fired for posting negative comments about their work.

Here’s an example of the NLRB’s handiwork, as it struck down the following passage in Costco’s social-media policy document: “Employees should 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.”

This is how the NLRB interpreted the passage: “By its terms, the broad prohibition against making statements that ‘damage the company, defame any individual or damage any person’s reputation’ clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.” Since protected communications were not excluded from Costco’s broad policy, the NLRB determined that employees would reasonably conclude that the policy required them to refrain from engaging in protected communications.

“Concerted communications” means two or more employees acting together in support of matters of mutual interest, such as compensation, benefits or workplace conditions. Such protected communications are part of Section 7 of the National Labor Relations Act (NLRA).

OFFLINE TO ONLINE

“This is really about social media becoming like every other form of communication,” says Ephraim Cohen, executive VP, technology and digital content practice lead at MWW. Indeed, the NLRB is enforcing Section 7 online like it would if three people were overheard by management talking by the company’s water cooler.

But why step in now? Ethan Wall, an Internet, intellectual property and social-media attorney with law firm Richman Greer, P.A., says one case in 2010 seemed to irk the NLRB. It involved Dawn Marie Souza, who worked for a Connecticut ambulance service.

On her own Facebook page, Souza called her supervisor a “scumbag” and a “17,” which is ambulance code for psychiatric patient. The company subsequently fired her.

The NLRB stepped in and filed an action to strike down what it called an overbroad social-media policy that restricted Souza’s ability to communicate protected activity.

Eventually the company settled with Souza. That NLRB action on her behalf seemed to get the ball rolling. So now, it’s imperative that existing social-media policies are closely examined, and new ones are carefully drafted.

So how do communicators working closely with HR and legal “NLRB-proof” their social-media policies? At the moment that’s impossible, says Wall. “The NLRB has told us what is not appropriate, but so far it hasn’t provided guidance as to what is appropriate,” he says.

Even though the situation seems complex, Wall, who authors the Social Media Law & Order blog at richmangreer.com, offers a rather simple solution: follow your ABCs—Accuracy, Brevity and Clarity.

• Accuracy: The drafter of the policy needs to do her homework while consulting with legal counsel, compliance and HR.

Language is important. For instance, a company may say in its policy, “Employees may only use social media for appropriate business communications.” The word “appropriate” is not specific enough, and leaves the passage open to interpretation.

Instead, the passage might read: “Employees may not post illegal, harassing or discriminatory messages via social media.”

• Brevity: Lawyers make things as complicated as possible. As a result, a lawyer will draft a policy that will cover every nook and cranny.

“Make policies as brief as possible, and tailored to specific types of platforms—Facebook, Pinterest, Twitter, mobile devices, email, blog, etc.” Wall says.

• Clarity: A social-media policy should be easy for employees to read from beginning to end; to know what is prohibited and what is not and how they should comply, Wall says. For even more clarity, make sure key terms (like Web 2.0, for example) are defined in a glossary.

While keeping the policy document simple is the goal, Cohen agrees that different policies for different platforms is best. Twitter or Facebook policies would cover posting text, images and video. With the launch of Twitter’s Vine, video content on video-centric sites might be tackled in a separate policy.

MAKE THE DISTINCTION

Cohen stresses that PR guidelines for social media and social-media policies are not the same thing. “Legal policies tend to be more restrictive,” he says. But that’s not to say that PR policies shouldn’t be reviewed by the legal team. “Because of the complexities, communications and legal must have a close relationship,” he says. “We’re smart but we’re not lawyers.”

To that end, Wall suggests building a social-media team with staff from PR, legal, compliance, advertising and marketing. “You’ll be able to better identify new issues that arise and determine the next steps,” Wall says.

And, PR execs can hope, keep the NLRB at bay. PRN

(Catch Ephraim Cohen presenting at PR News ’ Digital PR Conference, Feb. 27 in San Francisco; prnewsonline.com/digitalsummitsanfran13/.)