The Primerus Paradigm - Fall 2013 Page 38

T H E P R I M E R U S P A R A D I G M

7. "Savings clauses" (if policy is other-

wise over broad).

Employees do not have free reign to
gripe with impunity. The decisions em-
phasize that posts which merely reflect
an individual's contempt, or are simply
egregious, with no connection to a shared
concern about working conditions, likely
are not protected speech. Concerted
activity loses protection if it isn't just
inaccurate, but "maliciously false" or
"opprobrious," reflecting a desire to
harm.

Is Any Policy Lawful?

The policies deemed "unlawful" are
troubling because they include familiar
provisions that employers rely on to
cover common business concerns. In
Hispanics United, the NLRB ruled the
employer's "zero tolerance" bullying
policy unlawful under Section 8, stating
that "legitimate managerial concerns to
prevent harassment do not justify poli-
cies that discourage the free exercise of
Section 7 rights..." suggesting that any
policy that is so broad or vague that it
may not be clear that it is not intended to
restrict Section 7 rights is unlawful.
However, rules that clarify and re-
strict their scope by including examples
of clearly illegal or unprotected conduct,
such that they could not reasonably be
construed to cover protected activity, are
less likely to be unlawfu1. Examples of
lawful policies include:
1. Prohibiting:

a. Spread of "maliciously false"

statements.

b. Disclosure of trade secrets or

information subject to regulatory
protection.

c. Threats of violence, harassment or

discrimination.

d. Use of company resources for

social media activities during
"working time."

2. Requiring "appropriate business de-

corum" when using electronic means
to communicate.

3. Reasonable restrictions on contact

with media or government agencies if
tied to a specified business rationale.

Walmart's Policy Withstood
Scrutiny

Walmart was one of seven cases dis-
cussed in the May 2012 Report and the
only policy found lawful because it is
well-crafted, direct, uses "everyday" lan-
guage, provides definitions supported by
examples, and addresses legitimate goals
with respect to social media, enabling
employees "to differentiate unacceptable
behavior from protected concerted activi-
ties" with no unlawful "chilling" effect.
Although any policy should be
employer-specific, examining Walmart's
policy

with the NLRB's review of the

decision

is enlightening. Consider these

practices when drafting:
1. Tailor policy to company's culture.

2. Avoid broad language and blanket

prohibitions.

3. Provide definitions, examples and

guidance tied to goals unrelated to
terms of employment.

4. Be consistent across policies.

5. Include savings clauses with exam-

ples of excluded conduct.

6. Distinguish between employer-owned

and personal social media accounts.

7. Don't ask for access to personal ac-

counts.

8. Review user agreements for Facebook

and other platforms.

9. Before disciplining an employee ask:

· Does the activity fall within scope

of NLRA protection?

· Does the content relate to terms

of employment?

· Is it "maliciously false" or

unlawful?

· Consulting legal counsel.

The law in this area is far from settled.
Employers and practitioners should
continue to monitoring developments
and regularly review and update social
media policy as necessary.

1 The NLRA applies to any private sector employer that

has an "impact on commerce". It does not apply to
federal or state governments or those who employ only
agricultural workers or are subject to the Railway Labor
Act.

2 See 29 U.S.C. §§151-169.
3 The Supreme Court explained that even "the most re-

pulsive speech" is protected as long as "it falls short of
a deliberate or reckless untruth." Linn v. Plant Guard
383 U.S. 53 (1996).

4 See 29 U.S.C. §§151-169.
5 NLRB, General Counsel: Memoranda OM 11-74 (Aug.

18, 2011); OM 12-31 (Jan. 24, 2012); and OM 12-59
(May 30, 2012). Available at: www.nlrb.gov/reports-
guidance/operations-management-memos.

6 358 NLRB No. 106 (Sept. 7, 2012)
7 358 NLRB No. 164 (Sept. 28, 2012)
8 359 NLRB No. 37 (Dec. 14, 2012) and No. 96 (Apr. 19,

2013)

9 The GC's opinion is valuable, but the Reports are not

binding and do not carry the legal weight of Board
decisions which are issued after a party appeals the
decision of an ALJ.

10 In Noel Canning v. NLRB, the D.C. Circuit ruled that

President Obama's three January 2012 recess appoint-
ments to the NLRB panel were unconstitutional and
therefore invalid. The ruling has the potential to void
all NLRB decisions made in 2012. It will be appealed
to the Supreme Court, but it is unclear when or how
the issue will be determined. Until then, as a practical
matter, employers may want to consider social media
jurisprudence as in effect and applicable.

11 Available at: corporate.walmart.com/social-media-

guidelines.

12 See NLRB Advice Memorandum, Walmart CA 11-

067171 (May 30, 2012). Found at: www.nlrb.gov/
cases-decisions/advice-memos.

13 Disputes have arisen concerning who owns LinkedIn,

Twitter and Facebook accounts with claims based upon:
unauthorized use, theft of publicity, invasion of privacy,
and tortious interference. See Eagle v. Morgan (E.D.
Pa. 2013), PhoneDog v. Kravitz (N.D. Cal. 2011), and
Maremont v. Susan Fredman Design Group (N.D. Cal.
2011).

14 As of May 1, 2013, 9 states have and 35 are consider-

ing laws that make it illegal to ask employees to provide
access to private accounts. Facebook's terms of use
prohibit disclosure of passwords.