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January 04, 2013 Articles

You Can't Say That on Facebook . . . or Can You?

Approaches to enforce your rights when copyrighted works are posted without permission.

By Amy E. Davis

Email, text messages, the Internet, and social media have transformed societal interaction. This brave new web 2.0 world offers businesses almost unlimited opportunity. Companies looking to build brand awareness can, with minimal financial investment, place their services and products in front of millions of potential customers without buying a traditional advertisement. As a result, most employers now embrace the promotional opportunities presented by employee blogging, online commentary, and social networking. 

Yet the things that make social media and electronic modes of communication powerful marketing tools also make them fraught with danger. Long gone are the days of pleasant or at least obscure handwritten missives, typewritten letters and, to a lesser extent, phone calls and chats at the office watercooler. We communicate with friends, family, and colleagues in text, Twitter, or Facebook-length posts, sharing our "status" on a real-time basis often multiple times throughout the day. Our voices reach further still to an unlimited audience with online reviews, commentary, and blogs. The adages "think before you speak" and "if you can't say anything nice, don't say anything at all" frequently go unheeded in these indirect, sometimes anonymous and often instantaneous, interactions.

Dangers Make Social-Media Policies a Must
Hazards for employers include the widespread and irreversible disclosure of proprietary, confidential, or trade-secret information; vicarious liability for an employee's disparagement of a competitor; harassment of or discrimination against a fellow employee; or unauthorized use of copyrighted, patented, or otherwise protected information; and reputational injury caused by an employee's online disparagement of the employer or its management. 

Many employers seek to control these risks by use of social-networking policies. However, complaints filed by the National Labor Relations Board against employers as well as advice memoranda issued by the board have left the permissible parameters of these sorts of policies unclear. This article offers practical advice to employers walking the tightrope between the potential perils of employees' unfettered use of social media and electronic communication and the uncertainty of how an employer may limit these dangers by use of a social media policy.   

What Is the Board and What's It Got to Do with Social Media?
The National Labor Relations Board is a federal agency charged with investigating and remedying unfair labor practices, primarily resulting from violations of the Nation Labor Relations Act. Section 7, which applies to union and nonunion employers, prohibits retaliation against nonsupervisory employees for engaging in "concerted activities … for mutual aid or protection . . ." 29 U.S.C. §§ 151–169. Protected collective activity is discussion of a term or condition of work made to coworkers calling for some type of action. A work rule that chills protected activity is unlawful.

A policy may violate Section 7 even if it does not expressly restrict Section 7 activities if it is promulgated in response to union activity, applied to restrict Section 7 rights, or can be reasonably construed to prohibit Section 7 activity. A work rule does not violate Section 7 merely because it could conceivably be read to restrict Section 7. A provision is to be read in context, not in isolation. In the case of ambiguity, a rule is construed against the employer.  A policy is less likely to be viewed as ambiguous if it provides examples of prohibited or permissible conduct.

The board first considered the lawfulness of a social-media policy in an advice memorandum from the general counsel discussing the social-media policy of Sears. More particularly, a union claimed the company's social-media policy violated Section 7 by prohibiting, among other things, employees' "disparagement of company's or competitors' products, services, executive leadership, employees, strategy, and business prospects." Id. at 3. In reviewing the policy, the board reiterated the importance of context, finding the use of illustrative examples key: 

    For example, a rule proscribing "negative conversations" about managers that was contained in a list of policies regarding working conditions, with no further clarification or examples, was unlawful because of its potential chilling effect on protected activity. The board held that, in the absence of further guidance from the employer, an employee could reasonably construe the rule to limit his or her Section 7 right to engage in protected protest. On the other hand, the board found that a rule forbidding "statements which are slanderous or detrimental to the company" which appeared on a list of prohibited conduct including "sexual or racial harassment" and "sabotage" could not be reasonably understood to restrict Section 7 activity.

See Claremont Resort and Spa, 344 NLRB 832, 836 (2005) and Tradesmen International, 338 NLRB 460, 462 (2002).

The board concluded that Sears's policy, read in context, could not reasonably be interpreted to prohibit activity protected by Section 7 because, in context, the policy is reasonably read only to prohibit "online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about [Sears] or working conditions."
Id. at 6–7.

Less than a year later, in October 2010, the board seemed to change direction when it filed a complaint against American Medical Response of Connecticut, Inc. (AMR), alleging the company wrongfully discharged an employee who posted comments about her supervisor on Facebook and responded to further comments from her coworkers. The employee's comments allegedly included profanity and referred to her supervisor as a "psychiatric patient" and "scumbag." See American Medical Response of Connecticut, Inc., Case No. 34-CA-12576 (Region 34, NLRB). Nevertheless, the board felt the employee's electronic exchanges constituted an exercise of her protected right to discuss the terms and conditions of her employment. Perhaps more importantly, the board also found AMR's rules regarding blogging, internet posting, and communications between employees overly broad. One of the AMR policies closely resembled the Sears rule prohibiting employees from "disparaging, discriminatory, or defamatory comments when discussing the company or the employees' superiors, coworkers and/or competitors."  The case settled before a decision was rendered, leaving the apparent conflict between it and the Sears memorandum unresolved.

Since that time, the board issued three additional advice memoranda: in July 2011, January 2012, and May 2012. These memoranda, like the AMR complaint, find overly broad what would seem to be permissible social-media policies under the Sears decision. They also contained what seem to be internal inconsistencies. For example, in the most recent memorandum, the board found the following language lawful: "Don't post secret, confidential, or attorney-client privileged information," yet understood the following language to be overly broad: "Don't share confidential information with anyone who doesn't have a need to know." Similarly, the board sanctioned the following rule: "Any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between coworkers online, even if it is done after hours, from home, and on home computers . . . " but rejected "Offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline." See NLRB, Operations Memorandum 12-59 (May 30, 2012) (OM 12-59).

Despite the apparent inconsistencies and lack of bright line rules, the memoranda provide some guidance as to the do's and don'ts when it comes to developing a social-media policy, with the latest memorandum being the most helpful. The memoranda also make clear that the board continues to consider investigation and enforcement of social-media policies a top priority.

The Doʼs
Keep in mind a well-written policy achieves three important goals: limiting potential legal liability and unnecessary business interruption; protecting employees' rights under Section 7 (and other laws); and creating a happy, productive work environment.

Define the scope of the policy, explaining that it includes all Internet-based communications, including, but not limited to, personal blogs, message boards, microblogging sites such as Twitter, social-networking sites such as Facebook, MySpace, and LinkedIn, as well as other websites and "chat" forums.

Explain employees' obligation to disclose their affiliation with the company whenever they communicate information about the employer. The policy might also encourage employees in these situations to make it clear that the comments reflect their own thoughts and opinions and not those of their employer. In these situations or in others where a communication is reasonably attributable to the company, you may want to require preauthorization of the communication as these types of messages fall within an exception to the board's general prohibition against preauthorization requirements. Provide examples of how a communication might be attributable to the company, such as those made using a business email address, on a company-sponsored site or when an employee must or will be disclosing his or her employment with the company as part of the communication. Explain that a preauthorization restriction on communications that could reasonably be attributed to the company help ensure that the company does not run afoul of false advertising, consumer protection, or other types of laws.  

Remind employees that they are prohibited from disclosing the employer's confidential information, its customers' private information, or trade secrets. Be specific in defining confidential information (i.e., trade secrets; insider information that could be used to trade the company's stock; the personal health information of customers, coworkers, or other third parties; competitor or customer information; attorney-client communication or attorney work product; information that may be protected from disclosure by regulation, such as confidential information provided to the U.S. Food and Drug Administration or U. S. Federal Trade Commission). Where appropriate, include business-specific examples. A health-care employer, for instance, should remind employees of their obligations to keep a patient's HIPAA protected health information confidential. Refer to other employer policies, such as those on insider trading or confidentiality, to provide further guidance of prohibited activity

Inform employees that they may discuss their wages and other terms and conditions of employment.

Address the tone and tenor of employee communications toward or regarding the company,
coworkers, and competitors, but do not generally prohibit use of "disparaging" communications. Tie the restrictions to broader policies, such as prohibitions against harassment, discrimination, and bullying, or a bar on disparaging the products of a competitor. Caution employees that they are responsible for what they post and thus should use good judgment and common sense. Urge employees to consider how online comments might impact others. 

Encourage employees to be honest and accurate in their online communications.

Prohibit communications with the media on behalf of the company and instruct employees to direct inquiries from the media to the company to management.

Articulate the business purpose and the company's business interest in making certain information off limits.

Include a savings clause explicitly stating in understandable terms that the policy should not be construed, and will not be applied, to restrict employees' rights to engage in protected activities.  The board has repeatedly found these types of savings or carve-out clauses to be insufficient to mitigate an unlawfully overbroad policy. See OM 12-59 at 12. Nevertheless, these types of provisions do not hurt. 

The Donʼts
Limit the prohibition on disclosure of confidential information to those who are unauthorized to receive it. Carve out the use of trademarks, because employees may use trademarks in publicizing concerns about the workplace. 

Do notprohibit discussion of the workplace in general or to communications with coworkers.  Similarly, do not restrict discussion of pay or other conditions of the workplace. 

Do not limit discussion of pending legal matters, except with regard to privileged information. 

Do not place blanket restrictions on comments that would place the company in a poor light, or hurt the integrity of the company, or limit discussion of the workplace to coworkers.

Do not require employees to obtain preauthorization before communicating online or if they are in doubt about the permissibility of a particular communication. Likewise, do notdemand preauthorization before using other person's or company's content or images.Similarly, do not limit employees' communication with the media either by prohibiting it altogether or requiring they direct all media inquiries to company management. Any such restrictions should be limited to communications with the media on the company's behalf.

Do not limit online communication to those for which the employee knows are completely accurate, not misleading, and free of nonpublic company information. However, you may ask employees to be honest and accurate in their communications.

Still More to Come
Few of the boardʼs numerous challenges to social-media policies have been litigated before administrative law judges and then to mixed success. The sand will almost undoubtedly continue to shift until employers have actual precedent setting guidance on social-media policies. 

That said, the prudent employer should not wait to revisit its social-media policy. Time may be of the essence; in Sears, the board noted that it will look closely at whether an employer enacted its social-media policy in response to protected union-related activities. See Sears Holdings (Roebucks), Case 18-CA- 19081. A company that could be facing a union campaign may want to make particular haste. The situation could be compared to that of an overly broad non-solicitation policy, which can lead to the setting aside of a union election. Perhaps the board's most helpful guidance comes in the form of a social-media policy that it found to be lawful in all respects. See OM 12-59 at 22-24. If in doubt, an employer may turn to it for guidance and assurance.

Keywords: litigation, intellectual property, social-media policy, National Labor Relations Board, online communications, liability

Amy E. Davis – January 4, 2013

Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).