Crafting Social Media Policies Danielle M. Ryman What are employees saying? 1
The Domino's Debacle Two Domino's employees post YouTube video of them defiling a customer's order. Video went viral. Domino's President Publicly Apologizes. Store closed. 2
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NLRB Tackles Social Media Cases These issues and their treatment by the NLRB continue to be a hot topic among practitioner, human resource professionals, the media, and the public. Memorandum OM 11-74 (8/11) Memorandum OM 12-31 (1/11) Memorandum OM 12-59 (5/12) National Labor Relations Act Sec. 7 Employees shall have the right to... Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection... Sec. 8 (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 Mutual Aid and Protection Section 7 extends to employee efforts "to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship." Eastex Inc. v. NLRB, 437 U.S 556 (1978) 4
Board s Two-Step Inquiry Step 1: A rule is clearly unlawful if it explicitly restricts Section 7 protected activities. 5
Board s Two-Step Inquiry Step 2: If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Luthern Heritage Village-Livonia, 343 NLRB 646(2004) Confidentiality Rules Found to be Overbroad Make sure someone needs to know before sharing confidential information with co-workers. Employee would construe these provisions as prohibiting them from discussing terms and conditions of employment. Confidentiality Rules Found to be Overbroad Policy stated any online postings by employees should be completely accurate and not misleading and should not reveal non-public company information... If in doubt, check with corporate communications or legal representatives to see if it s a good idea. Cannot require employee to secure permission before exercising Section 7 rights. 6
Tone & Content Rules May Affect Employee Rights Employer policy instructed don t pick fights and reminded employees to communicate in a professional tone without making objectionable or inflammatory comments. Found to be unlawful because discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics or religion. Bullying Ban Legitimate Acceptable prohibition, harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace... Even if it is done after hours, from home and on home computers. Public Statements & Press Contact Policy that prohibited disparaging or defamatory comments, as well as policy that restricted employees from speaking to press or media without prior authorization violated Section 7 rights. Employees have a protected right to seek help from third parties regarding their working conditions including going to the press, blogging, speaking at a union rally, etc. 7
NOT Protected Activity Disclosure of confidential or proprietary information; Disparagement of any race, religion, gender, disability, national origin, etc. Explicit sexual references; Reference to illegal drugs; Disloyalty to the brand; Disparagement of company's competitors, products, services, executive leadership, employees, strategy and business prospects. Are There Any Lawful SoMe Policies? Wal-Mart Policy Passed NLRA Challenge The policy provided sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity. 8
Danielle M. Ryman 907.263.6927 6927 dryman@perkinscoie.com @danielleryman 9