When media like Facebook, Twitter, and LinkedIn first became popular, employers were naturally concerned the social sites would disrupt their businesses, says Tony Cooch. So they created broad policies that said, basically, “You are forbidden to post anything negative about customers, employees, managers, or vendors of this company.”

NLRB has gotten into the act. Cooch is a labor and employment law specialist and a shareholder in the Virginia firm of Bean Kinney Korman. He points out that the National Labor Relations Board, in a series of rulings, has forced employers to back off from those broad communication policies. One case that drew notice involved an ambulance driver in Connecticut who had a difficult relationship with her boss.

A client had criticized the driver, and the boss was investigating the incident in order to discipline the driver. She fired off some postings on a personal site, containing strong language about what a jerk (she used an uglier her word) the boss was, and the company fired her for it. But she had shared her postings with several co-workers, who responded supportively on line.

Since the drivers were in a union, NLRB got involved. And, it said, because the series of posts concerned “terms and conditions of employment,” they amounted to protected, concerted activity. And, the company was cited for having too broad a social media policy. That was an early warning in a rash of such NLRB rulings involving social media.

It must be "concerted." Cooch points to a series of decisions regarding the behavior of a salesman for a Chicago-area chain of automobile dealers, the Knauz group. The employee, Becker, attended an event held to roll out a new BMW model to customers, at which the dealership provided tortilla chips, hot dogs, and soda. He quickly posted sarcastic comments about the food.

Later that day, at a Land Rover dealership in the same group, a salesperson, according to Becker, allowed a 13-year-old to drive a $50,000 truck. The youngster first ran over his father’s foot and then drove the truck into a nearby pond. Becker posted video footage of the incident, along with very disparaging comments. He was fired the next day, allegedly for both postings. NLRB defended both, saying Becker’s termination amounted to an unfair labor practice.

The case then went to an administrative law judge, who disagreed with part of NLRB’s stance: It turned out that at least one other co-worker had complained about the food at the sales event, so Becker’s comments about that were concerted activity. As for the trashing of the truck incident, however, which the dealerships said was the primary reason for his termination, the judge overruled NLRB, saying the postings didn’t actually have anything to do with Becker’s terms and conditions of employment.

What should employers do? Cooch says that, in his view, NLRB has gone too far in protecting employee complaints, making it very difficult for employers to protect their reputations with customers and other employees—at least all of those who use social media. Further, he adds, some of NLRB’s rulings have not yet been tested in court and may not stand once they are. But in the meantime, it’s a situation that we all must live with. Here are the steps he suggests employers take to comply:

• Think about what you want your social media policy to accomplish before you craft it. Don’t just pull a sample policy off the Internet.
• You can prohibit employees from sharing the organization’s proprietary information.
• Appoint a spokesperson who will be the only employee permitted to talk with the media.
• You can ban negative comments about clients or competitors.
• But you cannot prohibit negative comments about supervisors or working conditions.
• State in the policy that nothing in it is intended to violate Section 7 of the National Labor Relations Act.
• Create and answer a set of frequently asked questions about the policy, and append them to it and/or share them through your intranet.
• Train managers and employees specifically about the policy, just as you do about sexual harassment.
• Designate one employee or a small group of employees to evaluate whatever negative comments are found on social media.
• Remember that enforcement is just as important as the policy itself.

Need help creating a social media policy? BLR^® has pre-packaged policies related to social networking, privacy, and the Internet, all in an easy to download PDF.