By Howard Wexler, Esq. and Samuel Sverdlov, Esq.

Seyfarth Synopsis: An Administrative Law Judge held that an employer’s policy of prohibiting employees from conducting personal business at work, along with its social media and solicitation/distribution policies, violated the National Labor Relations Act (“NLRA”).

In Casino Pauma, the NLRB’s General Counsel (“GC”) alleged that four of the employer’s handbook policies violated Section 8(a)(1) of the NLRA.  Specifically, the NLRB took issue with the wording of the following policies: (1) Conducting Personal Business; (2) Solicitation and Distribution; (3) Social Media; and (4) Conflicts of Interest (which relates to solicitation and distribution).

With regard to the policy prohibiting employees from conducting personal business, the GC alleged that such a policy was unlawful because it “bans employees from all of [the employer’s] property except when conducting [the employer’s] business.” The GC contended that “the rule unlawfully restricts off-duty employees from engaging in protected activity; and it prohibits protected activity during nonworking time.”

The solicitation policy was alleged to be unlawful because “it prohibits protected solicitation and distribution ‘if the intended recipient expresses any discomfort or unreceptiveness whatsoever.’”

The GC alleged that the social media policy was unlawful “because it prohibits employees from (1) ‘communicating anything to do with work’ on social media without an employer-approved disclaimer; (2) posting social media references to co-workers without their prior approval; and (3) posting photos ‘in conjunction with work-related postings’ without [the employer’s] prior approval.”

Finally, the GC contended that the conflicts of interest policy unlawfully required the employer’s advance notice before employees could solicit co-workers.

An NLRB Administrative Law Judge (“ALJ”) agreed with the GC that the wording of these policies violated the NLRA.  The ALJ held that the “prohibition against conducting ‘personal business’ on company property and ‘while at work’ can reasonably be read to restrict the communications of employees with each other about union or other Section 7 protected rights in non-work areas and on nonwork time.”  In particular, the ALJ found that the language “while at work” was overly broad.  Moreover, the ALJ found that the term “personal business” was ambiguous enough to include union activity.

With respect to the solicitation, social media, and conflict of interest policies, the ALJ noted that employees are permitted to “engage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” The ALJ also found that the employees should not be required to get the employer’s pre-approval in writing.

The ALJ also admonished the employer, by stating that the policies: “restrict the free exercise of [employee’s] Section 7 right to comment to fellow employees and others, including union representatives, about their work-related complaints concerning wages, hours and working conditions.”  With regard to the restriction on posting pictures, the ALJ held that, “[o]ne can easily imagine an employee who observes unsafe conditions in the workplace taking a photo for use by a union, to obtain the support of fellow employees in an effort to resolve the unsafe working conditions, or even to report them to the appropriate government agencies.”

Outlook

When an employee handbook has ambiguous or overbroad language, or has language that could conceivably be interpreted to restrict employees from engaging in broadly defined protected activities, the NLRB will not hesitate to allege a violation of the NLRA. The wording of each policy in an employee handbook must be carefully crafted so as to not restrict employees from communicating about union activity, or wages, hours and other working conditions during employees non-working time.  As such, it is imperative that employers have their handbooks constantly updated, and reviewed by attorneys familiar with the NLRA.

 

By Karla Grossenbacher

shutterstock_328329848-300x200Seyfarth Synopsis: This blog considers the blurring of the lines between personal and work-related communications which has created novel legal issues when it comes to determining whether an employer has the right to access and review all “work-related communications” made by its employees.

Over the last decade, communication via email and text has become a vital part of how many of us communicate in the workplace. In fact, most employees could not fathom the idea of performing their jobs without the use of email. For convenience, employees often use one device for both personal and work-related communications, whether that device is employee-owned or employer-provided. Some employees even combine their personal and work email accounts into one inbox (which sometimes results in work emails being accidentally sent from a personal account). This blurring of the lines between personal and work-related communications creates novel legal issues when it comes to determining whether an employer has the right to access and review all work-related communications made by its employees.

Employers have legitimate business reasons for monitoring employee communications. Take, for example, the scenario in which an employee leaves her employment, and the employer is concerned that she has taken proprietary information or solicited clients in violation of her duty of loyalty or a contractual agreement. Another common scenario that gives rise to the need for employers to review all of an employee’s work-related emails is when the employer is in litigation that requires production of employee communications.

Most employers are comfortable with the notion that, with a properly worded policy that provides notice to employees of the ability and intent to monitor email, an employer can access emails on an email server provided by the employer. However, what about cases in which the employer does not provide the email service? With employees using web-based emails, like Gmail and Hotmail, and texts to communicate in the workplace, the relevant communications may be elsewhere. In these situations, what are an employer’s rights to access and review such communications?

An employer’s ability to review electronic communications is governed by the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA). The ECPA prohibits the interception of electronic communications, and the term “interception” as used in the ECPA has been interpreted so narrowly that this title of the ECPA rarely comes into play in cases involving an employer’s review of employee email or texts. The SCA makes it illegal to access without authorization a facility through which electronic communication service is provided and thereby obtain access to communications in electronic storage.

With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail or Hotmail, the most frequent scenario confronted by courts is one in which a former employer accesses the web-based email of a former employee, looking for evidence of malfeasance. In these cases, the former employer is typically able to access the former employee’s web-based email account because the employee has saved her username and password on a device provided by the employer, which was returned at termination, or failed to delink an account from such a device. In these cases, courts have been reluctant to punish the former employee for failing to take appropriate steps to secure their own personal, and allegedly private, communications.

For example, a district court in New York considered an employee’s claim that his former employer’s review of emails in his Hotmail account after his termination violated the SCA because it was unauthorized. The defendant argued that its review of the emails did not violate the SCA because the employee had implicitly authorized its review of the emails on his Hotmail account because the employee had stored his username and password on the employer’s computer system or forgot to remove such an account from an employer-provided phone before returning it.

The court rejected this argument, holding that it was tantamount to arguing that, if the employee had left his house keys on the reception desk at the office, he would have been implicitly authorizing his employer to enter his home without his knowledge. The court also noted that the employer’s computer usage policy did not provide the necessary authorization because it only referred to communications sent over the employer’s systems.

Likewise, a district court in Ohio confronted with similar facts, refused to hold the plaintiff responsible for his own failure to safeguard his information. In this case, the employee had turned in a company-issued blackberry upon termination without first deleting the Gmail account he had added to the phone. The former employer reviewed the emails in the former employee’s Gmail account, and the former employee alleged that this violated the SCA. The former employer argued that the former employee had negligently or implicitly consented to their review of the emails in her Gmail account by returning the blackberry to the company without deleting the account. However, the court held that the employee’s “negligence” in leaving the Gmail account on her phone when she turned it in was not tantamount to her authorizing the defendant to review the emails on her Gmail account.

However, a federal district court in California reached a different result in a case involving text messages. In this case, a company had sued its former employee for misappropriating trade secrets when it discovered, upon his termination, a number of text messages on the former employee’s company-issued iPhone that documented his misappropriation. The former employee had forgotten to delink his Apple account from the company phone he returned, and thus, his text messages continued to go to the phone — and his former employer. The court granted the company’s motion to dismiss the former employee’s counter claim that the company’s review of his text messages violated the SCA. The court held that text messages stored on phones are not in “electronic storage” within the meaning of the SCA, citing a Fifth Circuit case that reached the same conclusion about text messages. Of course, a violation of the SCA is not the only issue in these cases.

For example, in this case, the employee also alleged that his employer had invaded his privacy. However, the court held that the employee had no reasonable expectation of privacy in a company-owned phone that was no longer in his possession. In contrast to the two cases above, the court found that the employee’s failure to undertake precautions to maintain the privacy of his text messages showed he had no right to exclude others from accessing them.

The main lesson from these cases is that, if an employer wants to have the ability to review all employee communications that take place in the workplace, the employer needs to have, at a minimum, a policy that specifically provides for the right to monitor and review, for legitimate business reasons, any work-related communications made by the employee on a device provided by the company or a personal device used for work purposes. (Although the SCA does not require any showing about the employer’s motives in accessing the emails, a traditional invasion of privacy analysis would take this into account.) As a practical matter, the employer may not have the ability to access such accounts, but where access is available, this policy language is critical.

By Scott Rabe and Samuel Sverdlov

Seyfarth Synopsis: With seemingly every employee having access to a smart-phone or other recording device, employers without strong social media policies may be placing themselves at greater risk of creating workplace incidents that could be avoided. 

Just a few weeks ago, a video leaked of Los Angeles Lakers rookie, D’Angelo Russell, recording teammate, Nick Young, describing adulterous sexual encounters with a 19-year-old during his engagement to pop star, Iggy Azalea.  The incident has since been described as a prank that backfired.  But this “prank,” and the ensuing media attention it drew, has caused the Los Angeles Lakers to endure a media frenzy, a fractured locker room, and being booed by their hometown fans.

The Lakers incident is just one of the more recent, and public, examples of the risks employers face when employees introduce audio and video recording devices into the workplace. Viral videos such as this example may tarnish a company’s reputation.  A leaked audio recording may disclose important company trade secrets or confidential information.  Or a video recording may misleadingly appear to reveal unlawful practices at a company that could lead to litigation or other unwanted attention.

Where employers may once have understood the work place to be a semi-private space, that has changed. As a result, information and behavior that could be counted on to remain within the confines of the workplace now has the potential to become very public very quickly, with some pretty hefty consequences.

So what can employers do?

One of the best things an employer can do to hedge against these risks is to create a comprehensive social media policy that explicitly defines employee responsibilities with regard to social media. The social media policy should:

  • be geared towards the company’s business and its workforce;
  • underscore the importance of acting professionally when utilizing social media in connection with work as well as the importance of, where possible, maintaining a separation between personal and professional use of social media;
  • strictly prohibit the sharing of non-public confidential or proprietary information, or trade secrets, on social media;
  • be distributed to new hires at orientation and be regularly provided as a reminder to existing employees;
  • make clear that employees can be disciplined for violating the employer guidelines.

An employer may also want to consider putting in place a policy that regulates the use of audio or videotaping in the workplace more generally.   Although the National Labor Relations Board (“NLRB”) has said that wholesale bans on video recording in the workplace are unlawful since they could deter employees from exercising rights guaranteed to them under the NLRA, an employer may want to put in place a policy that prohibits surreptitious recording in the workplace or one that prohibits recording of other employees in the workplace without permission. Additionally, employers should be mindful that many states prohibit any kind of video or audio recording where all participants do not consent to being recorded. Given the scrutiny social media policies receive, however, employers are encouraged to consult with counsel before implementing any policy governing the use of audiotaping or videotaping in the workplace.

Employers should also consider making an investment in the education of managers and supervisors regarding best practices for upholding and enforcing the company’s social media and video recording policies. Given the ubiquity of social media today and its importance to employees’ personal and professional lives, there is significant value to employers in having a workforce that is educated on how to use social media effectively while avoiding potential costly pitfalls.

Warning to Employers: Employee audio and video recordings may be protected

The NLRB has taken an aggressive stance in the last few years in connection with its regulation of employer-imposed limitations on social media use. (To read more about the NLRB’s take on social media use, please see our blogs: here and here.)  In particular, the NLRB has taken increasing action against employers who have sought to prohibit employees from engaging in public discourse regarding the terms and conditions of their employment, especially when such discourse occurs on social media.   As a result, employers need to be careful that their social media and related policies do not place undue limitation on the forum or content where employees can engage in discourse regarding their employment.  For example, an employee’s video post to YouTube where she complains about her wages likely would be considered protected concerted action, and the employer could face liability for interfering.

Relatedly, the Equal Employment Opportunity Commission has also made clear that it views the prohibition by an employer of an employee from recording evidence of discrimination by video or audio means may be “retaliation.” This is true even if the employer maintains a workplace policy forbidding such recording.  Thus, employers should be extra careful before disciplining or regulating the conduct of employees who have already raised claims or complaints against the company.

For more information, please contact the authors, your local Seyfarth attorney or a member of Seyfarth’s Social Media Practice Group [http://www.seyfarth.com/SocialMedia].

By Hillary J. Massey

iStock_000048141232_LargeEmployees’ social media activities often play a key role in workplace investigations.

For example, an employee may complain that a coworker sent a harassing Facebook message or posted something offensive on Twitter regarding race, religion, or disability. Employers handling investigations into such conduct should be aware that state laws may restrict employers’ requests for information about an employee’s social media activity.

Fifteen states have passed, and many other states have considered, laws addressing whether and how employers may access employees’ social media accounts. The laws, in varying degrees, prohibit employers from requiring employees and applicants to provide access to their social media accounts through username/password disclosures, by requiring them to open their page in a manager’s presence, or by requiring them to “friend” a manager. While some states explicitly permit access during the course of an investigation into employment-related misconduct, others do not address the issue. Courts have had few opportunities to interpret the laws.

A recent case in Mississippi demonstrates how social media activity may become part of an investigation. Although the case involves a public school, and thus constitutional rights that are not applicable to private employment, the facts are similar to common workplace issues. The case was brought against a school and teachers by the parents of a high school student who was suspended from the cheerleading team as a result of her social media posts. A teacher who had received reports from students that the plaintiff sent threatening Facebook messages to another student required all of the members of the cheerleading squad to give her their Facebook usernames and passwords. She inspected their accounts, determined that the plaintiff’s messages were threatening, and suspended the plaintiff from the team for two weeks.

The lawsuit alleged that the Facebook search violated the cheerleader’s constitutional rights to privacy and freedom of speech. After the lower court refused to dismiss the lawsuit on summary judgment, the appellate court reversed, concluding that the teacher and school were entitled to “qualified immunity” (and thus, not liable) for the Facebook search because the law concerning students’ rights to privacy was not clearly established at the time.

While there is no “qualified immunity” for private employers, employers may find themselves investigating similar allegations. And, like the teacher, employers may be inclined to demand account information to further their investigations. While this is permissible in some states, the law remains unclear in the majority of states. Thus, employers should consider training managers and human resources representatives who handle such investigations to be sure they understand the limits of their authority.

Seyfarth’s Social Media practice group has prepared an easy-to-use “Social Media Privacy Legislation Desktop Reference” as a starting point for employers faced with workplace investigations and other social media privacy issues. Contact the author, your Seyfarth attorney, or any member of the Social Media group with any questions.

By Robert B. Milligan and Daniel P. Hart

BlogThere is no denying that social media has transformed the way that companies conduct business.  In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.

Seyfarth’s Social Media practice group has prepared an easy-to-use “Social Media Privacy Legislation Desktop Reference,” as a starting point to formulating guidance when these issues arise.

 

The Desktop Reference:

  • Describes the content and purpose of the various states’ new social media privacy laws.
  • Delivers a detailed state-by-state description of each law, listing a general overview, what is prohibited, what is allowed, the remedies for violations, and special notes for each statute.
  • Provides an easy-to-use chart summarizing existing social media privacy laws by state.
  • Offers our thoughts on the implications of this legislation in other areas, including technological advances in the workplace, trade secret misappropriation, bring your own device (BYOD) issues and concerns, social media discovery, and federal law implications.
  • Concludes with some best practices to assist companies in navigating this challenging area.

We hope that you find its content useful.

How to get your Desktop Reference:

This publication may be requested from your Seyfarth contact in hard copy or is available as an eBook, which is compatible with PCs, Macs and most major mobile devices*.   The eBook format is fully searchable and offers the ability to bookmark useful sections for easy future reference and make notes within the eBook.

By Adam Vergne and Chuck Walters

Following a national trend, Montana and Virginia have become the nineteenth and twentieth states to enact laws restricting employer access to the social media accounts of applicants and employees.[1]

Virginia’s law, which takes effect on July 1, 2015, prohibits requesting (or requiring) the disclosure of usernames and/or passwords to an individual’s social media account.  In addition, the law prohibits any requirement to change privacy settings or add a manager to the “friend” or contact list associated with a particular social media account.  In addition to prohibiting the disclosure of usernames and passwords, under Montana’s new law, which took effect April 23, 2015, an employer is prohibited from requiring the disclosure of any information associated with a social media account or requesting an employee or applicant access a social media account in the presence of the employer.  As is common with such legislation, both statutes contain an anti-retaliation provision that prohibits an employer from taking any adverse actions against individual that exercise his or her rights under the law.

Notably, these statutes apply only to personal social media accounts meaning accounts opened on behalf or at the request of the employer are not protected. Employers are also still free to view information contained in personal social media accounts that is publically available.  Virginia’s law also includes an exception that permits employers to request login information if the employer has a “reasonable belief” the account is “relevant” to a “formal investigation or related proceeding” concerning the violation of a federal, state, or local law.

As the legal landscape associated with social media accounts continues to evolve, employers should review their policies and procedures to ensure compliance with all relevant statutory provisions.

For more information on social media in the workplace, please contact the authors, a member of the firm’s Social Media Team or your Seyfarth attorney.

[1]     In 2012, Maryland became the first state to enact social media privacy legislation.  Since that time, Arkansas, California, Colorado, Illinois, Louisiana, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Washington, and Wisconsin have enacted similar legislation.

By: Erin Dougherty Foley

Picture this. You arrive at work only to be met by the employee who always seems to know everything about all that’s going on and that person hands you a copy of the “tweet” that another employee posted right before arriving at work this morning. The tweet reads: “Whoa, just ran someone over on my way into the office. Hope he’s OK.”

A few minutes later your local police department calls and asks to interview the employee. A few minutes after that—the President of your company storms in and says he’s gotten several calls from suppliers who heard about the incident and are demanding that something be done about it.

What to do? What to do?   First. Investigate.

What not to do?   Panic.

You call the employee in—and the employee sheepishly tells you that the tweet was a joke and that he had actually taken the train to work that day, and did not drive. Now what?

This actually happened at the end of last year. A British company learned that its employee had sent a fake tweet similar to the one above and fired him.

Some called the action excessive. Others felt that it was appropriate given the poor judgment of the employee (not to mention the fact that the tweet went viral and was retweeted over 150 times).

But let’s break this down a little bit and identify some things to consider in the event something similar happens (heaven forbid!).

  • Did it happen? Confirm with the local law enforcement as to whether an accident occurred. If your employee is lying to you – well that’s a significant factor to consider.
  • What did the employee say? Or rather, what was the subject of the tweet (or the blog post, or the Facebook Post, or the Instagram Picture, etc.)? Did the employee say something that otherwise violates some other company policy? (Did he publish a trade secret? Did he communicate financial information in violation of SEC rules? Did he say something harassing or discriminatory?). If yes to any of these, then there might be cause to discipline the employee (yes, up to and including termination).
  • Wait! Did the employee say something that might be considered “protected concerted activity?” (See our earlier blog post about what that means.)  If yes: call your legal department (or your favorite Seyfarth lawyer). As we’ve blogged about before, discipline for social media conduct is very high on the NLRB’s radar – perhaps better to fly under that radar for the time being.

If your hypothetical employee has not been self-eliminated yet – ask a couple of more questions:

  • Who is the employee? In other words, what role does this employee play within your organization? Does the employee regularly engage in social media as part of his or her job duties?
  • Did the employee identify herself as your employee in the social media account she uses? (Remember Justine Sacco, the media representative who tweeted an offensive statement before leaving for South African and was promptly sacked shortly after landing in South Africa?) As one article put it: “Her whole job revolved around communicating with reporters—which made her Twitter comment about Africa all the more shocking.”)

It’s appropriate to consider what role the employee plays within the organization when making any disciplinary decision. If it’s an employee who “should have known better,” it’s OK to factor that into your decision.

It’s probably not appropriate to consider the opinions of the media or general public (they always want to burn the witch don’t they?). It’s a closer call when it comes to your clients or customers; should it be a factor–sure, but probably shouldn’t be the only factor.

OK, let’s return to the scene of the crime – hold on – there was no crime. Remember, our hypothetical crime did not happen; the employee claimed it was a joke. So, now what? Well, go back to the drawing board, or in this case, your policies and procedures. Do you have a Code of Conduct? Do you have a social media policy? Do either of those identify conduct that this employee violated? (See our first discussion points above).

Is there anything wrong with terminating someone for simply exercising bad judgment? No, provided that the decision is not otherwise motivated by some other discriminatory intent or in response to some other protected activity (i.e., not retaliatory – see our blog post on that topic). Each situation (like any other disciplinary scenario) has to be considered both in the context of the individual events as well as how the company has reacted to other employee misconduct. Consistency is a key factor in fending off otherwise messy employee litigation.

Was the decision to terminate the British employee excessive? That’s probably one best left to the court of public opinion.

If you have questions about this topic, please contact the author, who is also a member of Seyfarth’s Social Media Team, or your Seyfarth attorney.

By: Jonathan L. Brophy

Employers know all too well, or are learning very quickly, that the intersection of their anti-harassment policies and their employees’ Facebook posts is something of a moving target.  Employers often feel unsure as to how far they can go in investigating an employee complaint of a co-worker’s internet conduct.  The United Supreme Court recently alleviated some of this uncertainty for employers that investigate claims of harassment but then, in the process, also encounter employees who lie about their Facebook posts.  The Court recently refused to review a Tenth Circuit decision Debord v. Mercy Health System of Kansas, Inc., 737 F.3d 642 (10th Cir. 2013), and in doing so, let stand some of the guidance provided by that Court.

The Employee’s Facebook Posts and Termination of Employment

In Debord, the employee posted on Facebook that her direct supervisor had intentionally overpaid employees and that he “needs to keep his creapy hands to himself . . . just an all-around d-bag‼”

The supervisor, who had seen the Facebook posts himself, reported the employee’s comments to the employer’s HR director.  The employee lied to the HR director, on three separate occasions, about posting the comments to her Facebook account, but then later admitted to posting the comments herself.  While the company was investigating her concerns, the employee then sent text messages about the investigation to other employees.

The company then terminated the employee for her dishonesty over authoring the posts while at work and her disruptive behavior during the investigation.  Plaintiff, however, then sued for sex discrimination and retaliation alleging, in part, that the employer fired her because of her Facebook posts.

The 10th Circuit agreed with the trial court that the employer acted lawfully when it fired the employee.  The Court noted that the employee’s Facebook posts did not amount to a legally protected complaint of sexual harassment.  First, the Facebook posts did not comply with the employer’s flexible system for reporting sexual harassment complaints.  Second, the Facebook posts did not provide any notice to the employer.  Finally, the employer did not fire the employee because she posted on Facebook, rather it fired her because she was dishonest about the posts and for being disruptive during the employer’s investigation.

This case scenario presents a couple of key take-aways for employers.

Beware of the Pitfalls of Investigating On-line Conduct

  • No Shoulder Surfing.  Many states now prohibit employers from asking an employee for their social media password or from accessing their social media sites in the presence of the employer.  In Debord, the supervisor and several other employees saw the publicly posted comments and the supervisor reported it—the employer did not actively seek out the social media information.  Be sure to know your jurisdiction’s current rules on accessing employee’s social media.  Seyfarth recently published a desk reference covering this topic.
  •  Balance Your Investigations.  Many states also now prohibit employers from retaliating against employees who refuse to provide access to their social media accounts—but exceptions may exist if the employee’s social media content is relevant to allegations of employee misconduct or employer policies.  Again, it is imperative to be current on the rules that apply in your jurisdiction.

  • Consider If Postings Are “Concerted Activity”.  In September 2011, the National Labor Relations Board concluded that an employer had improperly terminated employees it had perceived as violating the employer’s harassment policy because those employees were engaged in protected concerted activity when they posted comments about their supervisor.  In contrast, in Debord, the employee was not terminated for posting about her supervisor on Facebook, but rather for lying about posting while at work and for her disruptive behavior in the investigation that followed.  When investigating complaints about work made on Facebook, employers must consider whether there are any implications of “concerted activity” raised by the employees’ posts.

Employers should review their social media policies to ensure that the policies provide the most protection for the employer to enforce its anti-harassment, trade secret and other policies, but that the policies also do not unlawfully prohibit protected concerted activity.

Be sure to download Seyfarth Shaw’s Social Media Desktop Guide by clicking here.  Or contact the author or a member of Seyfarth Shaw’s Social Media Practice Group to get more information.

By: Carlos Lopez

Companies cannot have every employee with a Twitter account spreading (mis)information about their business, products or services to hundreds or thousands of followers, but the National Labor Relations Board is sending mixed signals about what, if anything, employers can do about it.

Good News: While the Board has been a relentless foe of almost all social media policies, a small bright spot has been that in 2012 the General Counsel issued a memo (OM 12-59) blessing policies requiring employees to include a disclaimer that they are not speaking on behalf of their employer when making posting relating to their employer.

The memo concluded that employers have “a legitimate need for a disclaimer to protect [themselves] from unauthorized postings made to promote [their] products or services, and this requirement would not unduly burden employees in the exercise of their . . . rights to discuss working conditions.”

Not so fast: A recent ALJ opinion flatly rejected the General Counsel’s guidance as “unpersuasive” and now employers have reason to be confused as to what the Act (and the Board) allows.  The case is available here and the provision of online communications policy in question reads:

If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of the [the Company].

The ALJ read the provision to require inclusion of the disclaimer just about every time an employee posts about workplace conditions.  Indeed, the ALJ speculated that even “liking” another person’s comment about working conditions on Facebook would require a disclaimer, but then added “although it is hard to imagine how that could be accomplished.”

The ALJ did concede that companies have a legitimate interest in their employees not appearing to speak on their behalf.  Unfortunately, he gave short shrift to that interest, finding that “unless an employee is actively seeking to give the appearance of speaking on behalf of an employer,” it “defies common sense” that the vast majority of employee postings would be misconstrued as statements of the company.

Not surprisingly, the ALJ determined that the policy was extremely burdensome and unlawful because it would have a reasonable tendency to chill speech protected by the National Labor Relations Act.

Now what?  There are three big takeaways for employers:

1. The decision may be appealed.  This opinion muddies the water and leaves employers without clear guidance on an important issue.  An appeal would give the Board an opportunity to reinstitute clarity, one way or the other.

2. The policy is only burdensome if read to require a disclaimer every time an employee posts about the employer.  A policy that instead required a single disclaimer, say on an employee’s profile page, could shift the balance of burden versus legitimate interest in favor of the employer.

3. Employers can continue to prohibit employees from appearing to speak on behalf of the company without authorization.  The decision unambiguously noted that “it may be assumed that employees do not have a legitimate . . . right to speak without authorization on behalf of their employer.”  (Emphasis in original).  Of course, absent a disclaimer, the practical question is how?

This topic, and all topics related to social media, will be followed by Seyfarth’s Social Media Team.  Please stay tuned for further developments. Until then, please contact the author, a member of Seyfarth’s Social Media team, or your Seyfarth attorney with any questions.