Privacy and Data Security

The National Labor Relations Board Acting General Counsel, Lafe Solomon, recently issued a report on employer policies governing the use of social media in the workplace. Winston & Strawn partner, Brian Heidelberger, drafted a summary of the report which was published in Advertising Age. As Heidelberger points out, there are parts of existing social media policies which may be over-broad and violate the National Labor Relations Act. The Act protects both union and non-union employees who act together to improve workplace conditions, and the NLRB has found that an employee's social media activity may be protected by the Act in the same way that an employee's workplace activity is protected. The concern expressed by Solomon in his report is that in being overbroad, social media policies potentially restrict employees' rights. To avoid having potentially illegal social media policies, as Heidelberger outlines, Solomon suggests not doing any of the following in a social media policy: (1) restricting "friend-ing" other employees; (2) prohibiting employees from talking about the company; (3) stopping employees from talking to each other; (4) prohibiting posts that include third party intellectual property (although "respecting third party rights" would be acceptable); (5) having outright prohibitions on talking to the press; (6) requiring employees not to "harm the image of the company" (but avoiding harassing or bullying is okay); (7) asking employees to use a "friendly tone" (this could be viewed as stopping employees from their right to talk "robustly" about working conditions); and (8) asking employees to not use social media at work for certain protected uses (since they can engage in some activities during non-work time, in non-work areas).

Tip: Companies should be careful that the prohibitions in social media policies that relate to engaging in certain protected activities are not over-broad.