As discussed in last week’s article on social media law, the National Labor Relations Board has taken the leading role in fashioning the burgeoning law regarding social media speech by employees. The law is in its infancy, putting employers and employees in an uncomfortable position. Recently, the NLRB issued a report detailing its findings of fourteen social media cases. The report included a number of things an employer cannot do and very little an employer can do, although a properly tailored social media policy is still allowed.

      When crafting a social media policy, an employer should take into consideration a number of factors. Two of those factors include: (1) anticipating claims that employees have been retaliated against in violation of the National Labor Relations Act because of statements made about their employers or working conditions in any of the social media channels available, such as Twitter, Facebook, YouTube, blogs, podcasts, and others; and (2) claims that an employer's social media policy creates a “chilling effect" on employees in the exercise their rights under the National Labor Relations Act. 

     While the NLRB’s stance on social media has not been tested through the judicial system at this point in time, and few clear bright lines have emerged, it appears certain activities are likely prohibited. For example, employees should not be permitted to use social media to sexually harass another employee, or to commit any other act that is otherwise a violation of Title VII, which prohibits discrimination on the sex, race, religion and national origin. Likewise, retaliation through social media should also be prohibited. An employer should also be permitted to discipline an employee for age and disability discrimination via social media. Any other activity, which does not fall into the concerted activity bucket, may likewise be prohibited. However, the NLRB has suggested an employee may be permitted to make disparaging or defamatory remarks about another co-worker.

     Employers may also be able to prohibit an employee from disclosing trade secrets and confidential matters on social media, although the NLRB has opined that employee discussions over wages and pay, performance evaluations and other similar issues are likely protected conduct.  Trade secrets and confidential matters should be defined in an employee manual. The NLRB has stated that an employer cannot prohibit an employee from posting photographs on social media of himself wearing or displaying a company logo.

     Because the social media law landscape is unclear at this point, it is advisable to speak with counsel versed in social medial law before implementing new policies affecting this new age of social media employees.