For the purposes of this outline, we are not going limit our discussion on challenges with the National Labor Relations Board (NLRB) or the flawed NLRB social media policy guidelines. Please note, this is not an exact science as the recent three NLRB Reports, and their Board decisions, conflict. Also recall the recent Supreme Court challenges to the NLRB appointment procedures. What we will discuss is our suggestions for social media policies – for union or non-union companies – that will conform, at least the best we can, to NLRB policy language.
Obviously, if a company is concerned about the NLRB, (and all companies, union or non-union should be) then a Social Media policy that is consistent with an Employee Communications Policy and its Insider Trading Policy is critical. A company must develop an inclusive and strategically worded Social Media Policy that is consistent with these two important policies.
Companies have a choice to have a stand alone Social Media Policy, or to integrate it with its current Employee Communications Policy. Regardless of the structure – stand alone or integrated – careful and consistent wording is paramount.
Considerations for remaining compliant with the NLRB social media guidance
- NLRB safe harbor statements: Social Media Policy or Employee Communication Policy wording should attempt to be consistent with all applicable laws, regulations and the NLRB. Just like normal safe harbor statements on press releases and regulatory filings, these statements in and of themselves will not save you if your policy is written inconsistently with the NLRB’s “guidelines” in mind.
- A Social Media Policy must be consistent with a company’s Insider Trading Policy, the disclosure of material non-public news, as well as Regulation FD.
- Provide training for your employees, on what is acceptable; and more importantly, what is not.
- Ensure the Company has designated spokespersons as per its Employee Communication Policy. Obviously, the IRO has a lead role here.
- As a public company, transparency is key, and again the IRO has a lead role here.
- Remember, it doesn’t matter whether a company is union or non-union: as per NLRA Section 7 and 8, a company cannot interfere with employee rights.
- A company must monitor the social media landscape looking for posts that are inconsistent with its policies, and should use “common sense” and “good judgment”. Again, the IRO has a lead role.
- Today’s IRO’s have an overwhelming job as it is, so it is helpful to use outside Social Media professionals to manage outbound, inbound, as well as internal and external messages as part of a business intelligence strategy.
We will be providing a more comprehensive discussion in the very near future on the important topic of the NLRB’s Social Media policy recommendations.