Get Antisocial

A few years back, as the popularity of Facebook and other social networking sites exploded, U.S. labor lawyers—myself included—were advising businesses to draft and publish a social networking policy for employees.

By implementing such a policy, the thinking went, a company could prevent employees from engaging in online conduct that might be damaging, such as harassing or bad-mouthing co-workers, disclosing confidential information, or denigrating the company.

But that was before the National Labor Relations Board stepped in. Even if the courts strike down last year's NLRB recess appointments, the board isn't likely to become more employer-friendly during President Barack Obama's second term.

Recent experience suggests that social networking policies may be more likely to create problems than prevent them, and that there are more-effective ways for companies to protect their legitimate interests.

Just as a porch light attracts moths, a social media policy is likely to attract unwanted attention—a charge from the NLRB's general counsel, a successful legal challenge to the termination of an employee or legal leverage for a union trying to organize your employees.

'Concerted Activity'

Beginning in 2010, the NLRB's general counsel began filing complaints against companies—union and nonunion—on the basis of their social networking policies. The gist of these claims was that the companies violated the National Labor Relations Act (NLRA) to the extent that employees might interpret the social networking policies as prohibiting them from discussing or complaining about their working conditions with co-workers.

The act protects the right of employees to engage in "concerted activity." Such activity includes discussing and complaining about working conditions with co-workers. The general counsel, Lafe Solomon, has analogized social media to a 21st century office "water cooler" where employees can share information—though it strikes me as a very public water cooler.

As these complaints were issued by the general counsel, labor lawyers (again, myself included) advised business clients that they should maintain social networking policies but that the policies should be carefully drafted to avoid running afoul of the NLRA.

The general counsel kept issuing complaints, however, making it increasingly difficult to draft a useful policy that he would not find unlawful. For example, the general counsel took the position that a company cannot maintain a...