NRLB Weighs in on Employer Social Media Policies and Employee Disciplinary Action

The National Labor Relations Board (“NLRB”) recently provided a second report offering additional guidance to employers on disciplinary actions and social media policies. The report highlights 14 cases: half involving employee discharges based on employees’ Facebook posts; and the other half reviewing employer social media policies. As expressed by the NLRB, its guidance seeks to underscore two points:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; and
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The NLRB is particularly concerned about employers infringing upon employee National Labor Relations Act (“NLRA”) rights “to engage in … concerted activities for … mutual aid and protection,” including activities to address the terms and conditions of the employees’ employment. All employees covered by the NLRA, whether union members or not, have these rights. While the NLRB acknowledges that individual employee gripes made on social media which are not directed toward sparking group discussion or activity are generally not protected, the NLRB has continued to find that many disciplinary decisions based on social media activity infringe upon NLRA rights. Further, even if the disciplinary action at issue did not infringe upon such rights, the NLRB has continued to find that employer policies with broad or vague language could reasonably be construed by employees to restrict conduct protected by the NLRA. The January 24, 2012, publication is instructive to employers—both as a reminder regarding social media/Internet activity-related disciplinary actions, and as a source of specific examples of language the NLRB disfavors in social media policies.

• Recognize employees’ rights under Section 7 of the NLRA. The NLRB indicates that social media policies should contain language to clarify that the policy does not restrict employees’ rights under the NLRA, including their Section 7 rights to engage in concerted activity concerning the terms and conditions of employment or other mutual aid or protection. However, while this language may show the employer’s good intent, the NLRB does not find such a clause to be sufficient to address otherwise vague or overbroad terms that employees may perceive to prohibit Section 7 protected activity.
• Watch the adjectives. The NLRB’s memo stressed repeatedly that vague terms such as “appropriate/inappropriate,” “professional/unprofessional,” “disparaging” and “disrespectful,” when used in broad statements in social media policies, can be construed by employees as restricting their Section 7 rights and should be avoided.
• Context and examples can help. The NLRB indicated that with the addition of context and specific examples the employer can narrow the behavior prohibited by social media policies. Thus, an otherwise vague term like “appropriate” may be lawful if used within a narrowed context because the employee would understand his/her Section 7 rights are not covered.
• Requiring prior authorization or disclaimers that opinions expressed belong solely to the employee should be limited. Except in the case of endorsements, testimonials or other positive statements about an employer or its products, which are governed by Federal Trade Commission regulations, the NLRB found that requiring employees to get prior authorization, or to always identify their position with the company and state that the opinions belong to the employee alone, could be too burdensome.


• Identity of employer should not be broadly prohibited. Again, except with endorsements and testimonials, the NLRB found that using the company’s name or logo may be a tool in an employee’s outreach efforts for protected concerted activity and should not be subject to a blanket prohibition or requirement of prior approval before use.

Given the NLRB’s issuance of this follow-up report, even employers who have updated their social media policies as recently as a year or two ago may want to take a look and revise their policies accordingly. Employers should stay tuned for future decisions from the NLRB.

Authors:

Megan E. Alexander                    Hanna Fister Norvell                 Gregory T. Casamento        

NAD Approves Using Promotion to Increase Facebook “Likes”

The National Advertising Division of the Better Business Bureau (NAD) recently approved leveraging special deals or discounts to increase “likes” on Facebook, provided the promotion is not misleading. 

In the Coastal Contacts case, the NAD reviewed a promotion of  a “free” product offer to increase the number of fans who “like” Coastal. Offering coupons and discounts in exchange for a “like” on the Facebook platform is not uncommon.  The NAD concluded such an exchange constitutes a general “social endorsement” and further found such a social endorsement is not misleading to others simply because the “like” was gained through use of a special offer or discount.

NAD Challenge Details

Coastal advertised to its Facebook page visitors that they could receive a “free” pair of glasses by clicking the “like” button.  Once they clicked the like button, the offer details would be revealed.

A competitor alleged the promotion was deceptive for two reasons.  First, the offer was fraudulent because the material terms of the “free” offer were not disclosed in proximity to the “free” offer.  Second, it alleged the “likes” were fraudulent endorsements that “perpetuate the misleading suggestion that Coastal enjoys broader support than it would actually have in the absence of its misleading ‘free’ promotion.” 

NAD Ruling

The NAD found that because a Facebook “like” could mean many things to consumers—such as liking the promotion, liking the company, or simply wanting to “share” with their friends—it was not misleading or deceptive to employ a “like-gated” promotion on a Facebook fan page.  Such promotions can deliver giveaways, coupons or discounts in exchange for “liking” the advertiser. 

However, the NAD did find Coastal’s free offer needed to be modified to include additional information in close proximity to the word “free.”  Despite this flaw, the NAD found that the offer was not deceptive since consumers were actually able to obtain a “free” pair of glasses. 

The NAD further found that, because the benefits of the promotion through “liking” the page were valid, any increased visibility was not fraudulently obtained.  The NAD cautioned its conclusion would be different if consumers who participated in the “like-gated” promotion were denied the promised benefit or offer.  The NAD compared deceptive promotions to other misleading activities such as paying a service to artificially inflate the number of “likes” and requiring employees to “like” their employer’s page without disclosing the employment connection.

Take-Away

If you condition participation in a promotion such as a contest, sweepstakes, or discount offer on a customer’s “liking” you on Facebook, be sure your promotion is not deceptive or misleading. 

Authors: Paul Van Slyke

Gregory Casamento

Jason Mueller