Back in June, I broke news on a case that involved a BMW dealership firing a salesperson for posting critical comments about the dealership and pictures of an accident that occurred on a nearby dealership’s lot (that happened to be owned by the same people).

Due to the huge increase in social media use by the general population as a form of communication, The National Labor Relation Board is aggressively going after companies that terminate employees for issues in regards to social media use. Until now, there seemed to be no rhyme or reason to which cases they were supporting and which they weren’t. The information was there, but unless you were actively seeking these cases, chances are you wouldn’t find them.

In an effort to coordinate the prosecution of cases involving social media, Anne Purcell, Associate General Counsel for the National Labor Relations Board, wrote and released a 24 page report on August 18, 2011 summarizing cases involving social media and explaining why they have chosen to prosecute (or not) these cases. In doing so, they’ve given insight into what you can and can’t do as an employer including what they believe your social media policy should (or shouldn’t) say.

Keep in mind that this is a summary of the cases and issues that they’ve determined merit prosecution. While some of the cases have been settled, many of these cases have trials pending. In no way are these laws or precedents…yet. However, in knowing what they do and don’t consider valid complaints, it can help any employer construct a more solid social media policy that would, at the very least, withstand the scrutiny of the National Labor Relations Board. It also gives insight into what, if any, disciplinary action you can take against an employee in regards to social media use.

In summary, based on the collective summaries of the cases, here are some guidelines I’ve extrapolated from the report for your social media policies and disciplinary considerations:

They’re huge on protected concerted activity. Employees can discuss and criticize their employer, supervisors and co-workers as long as they don’t stand alone in their criticisms. Your employees can call you a “scumbag”, an “a-h***”, a “super mega puta” or whatever else as long as they have co-workers that share their opinion. They have the right to discuss working conditions and their employer anywhere, including via social media. The keyword here is that it must be a discussion. Personal gripes don’t count.

You can’t have overly-broad social media policies. Things you can’t include in your social media policies:

1. Prohibit employees from making negative comments about the company, their supervisors or their co-workers.
2. Posting pictures of themselves which depict the company in any way (ie. in uniform, on the job, etc.)
3. Prohibit them from using inappropriate, offensive or rude language in regards to a coworker, the company, or a customer.
4. Prohibit inappropriate discussions via blogs.
5. Prohibit employees from discussing company business on their own time on their personal accounts.
6. Prohibit employees from disclosing inappropriate or sensitive information about the company.
7. Prohibit employees from posting pictures or comments involving the company or its employees that would be considered inappropriate.
8. Prohibit employees from using the company name, address, or other company information on their personal profiles.
9. Prohibit employees from using the company’s logo or photographs of the company’s store.

How many of these does your company have in its social media policy?

I bet quite a few. You’re probably thinking “Holy Cow” about now. Seems as if employees can do anything they want! That’s not true. What IS true is this: these company’s social media policies (when they had them) contained restrictions that were overly broad and encompassing. Employees have a right to bitch about their workplace, bosses and company, whether it’s aloud or via any type of social media, including Facebook, Twitter or blogging. It doesn’t matter whether you have an “At-Will Employment Agreement”.

So how do you restrict your employee’s social media use through policy without it being considered overly-broad? I mean, come on, you can’t account for EVERY possible situation in a written policy.

The answer is actually quite simple. Your policy is overly broad and/or unlawful if it does not contain verbiage that excludes protected concerted activity as defined by Sections 7 and 8 of the National Labor Relations Act. Simply putting a phrase similar to that into your social media policy should protect you in most instances (unless, of course, the activity IS protected).

In addition, when considering whether you can or can’t terminate an employee because of something they posted on social media, you need to ask yourself these questions:

1. Is this comment posted relating to any form of work conditions?
2. Is it a shared opinion and/or being discussed with fellow co-workers?

If the answer is yes, I would think twice before disciplining the employee. If the answer is no, you’re probably safe.

This has nothing to do with free speech. It has everything to do with creating policies that would INCLUDE protected concerted activities. To make it short (and provide an example of their reasoning), you can’t tell an employee they can’t post photos or use the company logo on social media without permission because that would include prohibiting the employees from posting photos of them on a picket line in front of your dealership. You can’t simply tell them they cannot talk about the company via social media because that would prohibit them from lawfully discussing working conditions with their co-workers.

Moral of the story: If you’re an employer, make sure your policy excludes protected activity. If you’re an employee, make sure your co-workers agree with you (and chime in).

Disclaimer: The author of this post is not an attorney and in no way should this be considered legal advice.