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Nasir and Matt discuss the National Labor Review Board's challenge of an employer's social media policy andthe reason why the employer was able to prevail.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast where we cover business in the news and add our legal twist. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And that is all. I’m going to stop talking now because I tend to just… you pause and then I get nervous and then I don’t know what to say.

MATT: You come in so excited and then it’s just stage fright. You’ve only memorized that first line.

NASIR: Exactly. No, I might as well just end the podcast. I don’t know what I’m doing. I need a script.

MATT: I don’t think it’d be as exciting if we read straight off a script. It’d probably be more factually accurate but…

NASIR: Probably, instead of like, “Okay, what are we covering today?” Well, what are we covering today? Social media policies, right?

MATT: Yeah, social media policies and I guess employer policies in general. It kind of springs off this social media policy case. It’s actually, well, I’m a little bit surprised. It’s usually that it comes down pretty harsh on employers. We’ll see if everyone can follow me on this to explain the procedure of how this case worked. The general council on the NLRB – National Labor Review Board, I believe – they challenged an employer’s social media policy saying it was unlawful – basically saying it was too restrictive, prohibited protected activity – essentially free speech it looks like. General accounts of NLRB challenges this policy as unlawful which then went in front of an administrative law judge which decided that the policy was in fact not unlawful. Then, it was reviewed by the NLRB that affirmed the ALJ’s decision that the policy was not unlawful. Long story short, this policy of Landry’s Inc…

NASIR: Is not unlawful lawful.

MATT: Yeah.

NASIR: Is that what it is?

MATT: Yeah. You know, I was reading something written by an attorney the other day and it had so many just negatives in it. It was just impossible to read. Like, “Just use clear language.”

NASIR: Yeah.

MATT: It was a court decision so it was even worse.

NASIR: That’s even worse, yeah, written by a lawyer, still.

MATT: I think it might be worthwhile for me to read this policy – at least this section because it’s not that long. We’ll let the listeners decide.
“While your free time is generally not subject to any restriction by the company, the company urges all employees not to post information regarding the company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.”

NASIR: It’s actually a very well-written policy, believe it or not, and it’s proven to actually withstand its criticism. By the way, Landry, I guess they operate Bubba Gump Shrimp restaurants which I think I’m only familiar with, they always seem to be on piers across the country – San Francisco, Seattle, I think they have one here in Galveston, Texas, too.

MATT: You’re familiar with it because of Forrest Gump, I would assume.

NASIR: Oh, well, yeah, obviously, but I’m familiar with it as a restaurant. What’s funny about this – oh, not funny, it’s just frustrating, actually – the NLRB general council, in my opinion, this policy is pretty well-worded and yet still they challenged it and it just goes to show you, like, it doesn’t even matter what the law is sometimes. You have to be ready to defend yourself when it comes to these employment matters, especially from the NLRB.

MATT: I agree with you too and I’m reading through the general council’s sort of thought process through this and I’m not surprised by the things that he highlighted. He had issues with the language referencing morale and being civil to others and their opinions. I mean, this is a pretty fair policy and I don’t think it’s being restrictive at all. I mean, it’s just kind of common sense almost.

NASIR: And so, to kind of be clear on what the NLRB is trying to actually restrict here is what is called concerted activity and it’s a form of protected speech, really. It’s a legal term used in labor policy to basically define an employee protection against employer retaliation and it usually has to do with discussion about unionizing but it also applies to discussion about safety violations or wage laws or unfair activity in that respect and so that’s the real aspect of what they’re trying to protect. The concept is that, if your social media policy is so broad that this type of protected activity is restricted, then now your policy is not lawful.

MATT: Right, and that’s not what’s happening here. They’re not saying…

NASIR: Or unlawful, sorry.

MATT: The employer is not saying…

NASIR: To which.

MATT: Yeah, the employer is not saying you can’t make any posts about the company or employees on social media. It’s just defining what you shouldn’t do. Essentially, what it’s saying is, in my opinion, don’t make defamatory comments about the company or people that work there. I mean, that’s how I kind of view it. That’s just telling the employees: “Do not break the law.”

NASIR: Yeah. Unfortunately though, it’s kind of complicated – even for lawyers. If you just look at, for example, Wendy’s went through this a year ago in their handbooks and so forth and they had some social media policies. Some of the restrictions that were found to be unlawful I think for most people, it wouldn’t be surprising to have in their handbook or to even put it in there such as some unlawful policies which included commenting on business, financial performance policies, employees or competitors on social media, right? That was considered to be an unlawful provision. Posting photos taken at company events or of company employees; maligning, defaming, disparaging, or insulting co-workers, customers, or competitors, right? These are all examples of things that were not included. Most likely, it’s because of how they were worded or whether there was this claim but, just as an example, some policies that were allowed were restrictions on commenting on trade secrets and proprietary information, i.e. confidential information. Taking, distributing, or posting photos, videos, or recordings of co-workers or work areas during work time unless in furtherance of protected activities, right? Most of these things can probably be done anyway but you just have to be a little bit more careful in drafting these provisions. It’s not an easy task. And some of these templates probably don’t comply with these kinds of restrictions and laws.

MATT: I think the key is what they’re saying is a lot of these are just overbroad because I have one here pulled up: “Do not discuss customer or employee information outside of work, including phone numbers and addresses.” I mean, that seems like common sense. That should be something that wouldn’t be allowed to have restricted but, in this case, they’re saying that’s overbroad.

NASIR: As stated, it’s overbroad but I think what they’re trying to do is not overbroad. It’s like, well, yeah, you can talk about that – that’s what we meant – but, unfortunately, when you’re dealing with the language and in writing, you have to be a little bit more clear.

MATT: Just going back to this for Landry’s, it’s dealing with social media policy. I was thinking, what if it didn’t have anything to do with posting on social media? What if it was strictly talking about not saying anything outside of work? I mean, would that change it? I think the fact that I guess they could always deny that that was said. With social media, you can actually see physical proof that something was posted.

NASIR: Yeah, you’re right. I mean, really, the law hasn’t really changed other than the fact that – you’re right – in social media, there’s a little bit more of a record and proof when it comes to that which goes to kind of the next issue. This may not be the focus of this episode but a lot of people have to deal with what happens when you have to terminate somebody or discipline somebody because of something they posted on the internet? Whether it’s through a social media post or a blog or what-have-you. The answer is not as simple as you may think. For example, an employee who engages in a conversation on her Facebook with maybe a couple of her friends but then her co-workers join in the conversation about how bad the work experience is may be actually protected speech whereas some employee who makes some comment threatening that – not even threatening – making fun of one of their customers for X, Y, and Z, that may not be protected activity and it’s very, very fact-specific. And so, we joke around that pretty much every state’s an at-will state but the reality is that you need to have a real reason to fire them. Otherwise, the employee may find an illegal reason why you fired them and so you have to be very careful with that.

MATT: It’s not easy for employees. I mean, there’s no getting around that. Even if you think you’re doing something right, someone will determine you’re not – or they could. It reminded me of… I want to say this was a few weeks ago, something my wife showed me. I’m going to get the store wrong. I think it was Coles or JC Penney or one of those department stores like that and it was a woman who got sent home from work one day because her outfit was too revealing or not appropriate. The only problem was she bought it from that store and in their work clothes department which was really funny. But then, she took a picture of herself flipping off with her middle finger up and then, you know, posted it and something about it to the store. It was good up until that point where she kind of ruined it but I thought that was pretty funny how she got sent home for that.

NASIR: Yeah, she made it obviously worse. There was nothing good that came out of that.

MATT: I guess, for employers, I mean, I don’t want to say the advice is “don’t be overbroad in your social media policies” but there’s probably something better we can say than that.

NASIR: You’re right. It’s not easy to kind of give a final advice other than first think about what your purposes of the social media policy is. Do you really need one? I would say the answer to that is yes. But how involved in your employees’ lives do you want to get into? And is your business such that, besides the typical kind of employee rant online, is there something else that you’re trying to protect? That would be my focus. And, of course, getting a lawyer to actually write up this policy, and making sure, even the lawyer, you know, it’s not an easy job for the lawyer too because this is a changing area of law with the NLRB’s aggressive enforcement for this.

MATT: Yeah. I mean, I guess that’s the thing too. If anything, even though they weren’t successful this time, it’s showing that they’re taking a pretty employee-favorable approach to this. I guess a hostile approach towards employers. There’s a memo that came out from the general council of NLRB earlier this year. I think that’s what you were kind of referencing to, I think that was the Wendy’s one.

NASIR: Yeah.

MATT: People can go through and read some of the stuff in there. I just can’t see how any person using just reasonableness would read through that and say, “Some of these things, yeah, that’s acceptable to be unlawful.” It’s tough.

NASIR: Exactly, it is tough. Well, thanks for joining us, everyone. I think that’s our podcast episode. We should have all our listeners read that thirty-page general council statement about all this.

MATT: It’s actually not as long as it seems. It’s a lot of one- to two-sentence quotes that are bolded.

NASIR: Oh, okay.

MATT: Yeah.

NASIR: Is it like a pamphlet or something? I don’t even want to open it up.

MATT: Just a straight up memo.

NASIR: Okay.

MATT: Yeah. All right. Keep it sound and keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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