Author: Beth P. Zoller, XpertHR Legal Editor

The National Labor Relations Board (NLRB) appears to be scaling back its attack on social media at work policies and has provided additional insight to employers as to what constitutes a valid social media policy under the National Labor Relations Act (NLRA). In a recent Advice Memo in Cox Communications, Inc., Case 17-CA-087612 (October 19, 2012), the Office of the General Counsel of the NLRB's Division of Advice (Division) determined that a social media policy complied with the NLRA and an employee was lawfully terminated for using lewd language and making inappropriate comments in violation of the policy.

Background for Cox Case

Cox, a broadband communications company, maintained a social media policy prohibiting employees from making comments or otherwise communicating about "customers, co-workers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory..." The policy stated that such "communications are disrespectful and unprofessional and will not be tolerated..." The policy also specifically included a savings clause stating that nothing "in the social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in, or refrain from, such activities." The policy also instructed Cox employees to "respect the laws regarding copyrights, trademarks, rights of publicity and other third party rights" and not to "infringe on Cox logos, brand names, taglines, slogans or other trademarks."

A technical support representative at Cox fielded a call from a disgruntled customer who called the employee a "faggot" before hanging up. The Cox employee then accessed his personal Google Plus account and posted the following: "Just because you are having problems with your TV service does not mean you should call me a faggot! ^%$& YOU!". The Cox employee was subsequently terminated for violating the social media policy and using lewd language disparaging customers.

Division Finds Both Policy and Termination Lawful

The Division determined that the social media policy at issue was lawful because it did not explicitly restrict employees from engaging in protected concerted activity under Section 7 of the NLRA and noted that the saving clause assured employees that the employer was not interfering with their right to engage in protected activity. The Division further held that the clause prohibiting employees from engaging in communications that were "vulgar, obscene, threatening..." was reasonable because it was listed alongside examples of other plainly egregious conduct. Further, the Division found the clause instructing employees to respect intellectual property laws and not infringe on Cox logos and brand names lawful because the employer had a proprietary interest in its trademarks.

The Division then held that the employee's termination was lawful because the posting itself did not constitute concerted activity as it was directed at a customer and not co-workers. Additionally, the employee did not use language seeking to initiate collective group action.

Advice for Employers

Cox offers employers further guidance as to what constitutes a valid social media policy and suggests that employers:

  • Avoid using overbroad and ambiguous language that could be reasonably construed to interfere with the right of employees to engage in protected concerted activity;
  • Provide specific examples illustrating prohibited conduct and highlighting particularly egregious behavior (i.e., harassment, discrimination, obscene and threatening language);
  • Advise employees to respect intellectual property laws;
  • Carefully define what the employer means by confidential and proprietary information and provide specific examples; and
  • Contain a savings clause which explicitly states that the policy is not meant to prevent employees from engaging in protected concerted activity.

Further when considering whether or not to discipline employees for violating a social media policy, employers should:

  • Carefully investigate the nature of the posting;
  • Evaluate whether the posting is directed at co-workers and attempts to initiate group action; and
  • Avoid disciplining employees for engaging in protected concerted activity, i.e., seeking to engage co-workers in collective action aimed at discussing wages, hours, and working conditions.

Additional Resources

Employee Management > Employee Privacy > Monitoring Use of Social Media Networks

NLRB Strikes Again and Issues First Social Media Decision

NLRB Issues Guidance Focusing on Social Media Policies

Dos and Don'ts Regarding Social Media Policies - Chart

Social Media Policy

Acknowledgement and Consent Form for Social Media Use

How to Draft and Enforce a Social Media Policy in the Workplace

Employee Conduct and Discipline Policy

Dos and Don'ts of Social Media - Supervisor Briefing

Employee Use of Social Media May Constitute Protected Concerted Activity