This is the second of five in an article series entitled How to Create a Global Social Media Policy.  It was written by international employment attorney Donald Dowling with Littler Mendelson P.C.

Part I can be read here.

Should a Global Social Media Policy Account for Local Restrictions under Domestic American Labor Law?

U.S. employment-at-will offers American employers a lot of freedom and flexibility to promulgate the workplace policies employers want to impose. Of course, American work rules cannot illegally discriminate and must comply with certain other laws. But for the most part, U.S. employers can and do impose lots of non-discriminatory but tough policies on their staff. As just a few specific examples, think of co-worker dating disclosure mandates, mandatory reporting rules requiring whistleblowing, and random drug screening programs.

When a U.S.-headquartered multinational globalizes some HR policy that until now had applied only domestically within the U.S., the employer often finds itself having to water down or loosen up the policy to account for stricter regimes outside employment-at-will. For example, it is almost impossible to extend, internationally, tough American-style work rules on the three topics mentioned—dating disclosure, mandatory whistleblowing, and drug screening.

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But not as to social media policies. Unexpectedly, social media policies happen to be the polar opposite. Social media policies trigger a surprisingly tough principle fiercely regulated under domestic U.S. labor law but virtually unregulated anywhere else on Earth. The upshot: A multinational promulgating a global social media policy actually enjoys a lot more freedom and flexibility outside the United States. While more freedom is good, the dichotomy here—law in the United States versus law abroad—creates an insidious complication for crafting a single global social media policy.

When an employer experienced with workplace social media domestically in the United States decides to extend a social media policy internationally, the organization carries along baggage maybe better left at home. A U.S. employer may approach a social-media-policy project conditioned to comply with unique principles under U.S. labor law that actually do not reach abroad.

Courtesy:  Pexels

Understand the dynamic here. Proactively decide whether to bifurcate a restrictive U.S. social media policy compliant with American labor law from a separate, tougher policy for workforces across the rest of the world.

The unique principle of American labor law at issue is the protection of “concerted activity” for employees’ “mutual aid or protection,” a legal rule under section 7 of the U.S. National Labor Relations Act that reaches most all American employers, unionized and non-unionized alike. This doctrine emerges from a statute that ostensibly gives workers a right to unionize—NLRA § 7 says:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” (emphasis added).

This provision of the NLRA prohibits an employer from discriminating against activists trying to unionize. To that extent it is straightforward and non-controversial. Even management recognizes workers have a legal right to join trade unions—the International Labor Organization frames this as a fundamental human right. But this provision of the NLRA extends much farther and regulates a universe far bigger than the niche issue of expressly championing labor organizations. The NLRA statute forbids American employers—again, even non-unionized ones—from issuing any HR rule, including a social media policy, that might discourage employees from complaining about management, work conditions, benefits or pay. Under this provision of the NLRA, if some employer were to instruct American workers not to criticize, among themselves, their boss or their jobs or their pay rates, that instruction would be an unfair labor practice infringing “[e]mployees[’] …right…to engage in…concerted activities for the purpose of…mutual aid or protection.” In the United States, we call this an unlawful restriction on protected concerted activities.

Cases interpreting the NLRA are notoriously subject to oscillation over time, depending on which party occupies the White House. But federal courts and the U.S. federal agency that interprets labor law has taken a broad view of protected concerted activity. According to a 2018 U.S. Supreme Court opinion, “[s]ince the [Labor] Act’s earliest days, the [Labor] Board and federal courts have understood § 7’s ‘concerted activities’ clause to protect myriad ways in which employees may join together to advance their shared interests.” (Epic Systems Corp. v. Lewis, 584 U.S. __ (2018) (Ginsburg, J., dissenting on other grounds). Specifically, over the years, NLRA § 7 has invalidated all sorts of work rules—even rules worded so they do not to appear to address overt criticism of management, jobs or compensation.

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Even a confidentiality rule might violate the NLRA, if it prevents workers from telling colleagues confidential information about pay rates and company HR practices; after all, any such confidentiality rule might chill workers wanting to “engage in…concerted activities for the purpose of…mutual aid or protection” in an informed way. Similarly, a social media policy might violate the NLRA if it chills employees from using social media to communicate among themselves or with the public or customers and criticize their employer.

Explicating the reach of domestic American protected concerted activities law in the context of domestic American social media policies is a nuanced, always-evolving issue beyond the scope of our discussion here on international social media policies. (See, e.g., NLRB General Counsel Memorandum OM 12-59 (5/30/12); William Beaumont Hospital, 363 NLRB No. 162 (4/13/16); Boeing Company, 365 NLRB No. 154 (12/14/17.) But speaking broadly, a domestic U.S. employer promulgating a domestic U.S. social media policy needs a strategy and a defensible position for why rules in its policy do not infringe on protected concerted activities. Protected concerted activities becomes an issue—possibly but not necessarily a full prohibition—as to rules in a U.S. social media policy purporting to restrict employee social media postings that are:

• Complaints: Posts that disparage or criticize the organization or that make negative, disparaging comments about mangers or co-workers
• Aggressive: Posts that are offensive, demeaning, abusive, inappropriate or “pick fights”
• Inflammatory: Posts that take inflammatory positions on political or social issues in a way that might hurt the company’s image and integrity
• Impolite: Posts that fail to use a “professional tone” or are inappropriately “impede harmonious interactions and relationships”
• False: Posts that are false, misleading or inaccurate
• Disclosures of confidential information: Posts that reveal certain confidential, non-public company information including information about pay rates, benefits, human resources practices or personal information about co-workers and contingent staff
• Violations of HR process: Posts that broadcast HR complaints instead of channeling them internally to management or the HR team
• Violations of copyright and rights of authorship: Posts that use the employer’s logo or intellectual property to criticize or disparage the organization

In addition, protected concerted activities might also raise issues as to a U.S. social media policy purporting to control workers’:

• “Friending”: Instructing staff which fellow employees not to “friend” or to link to on social media
• Mandatory reporting/whistleblowing: Requiring staff to report co-workers’ violations of the social media policy, and to report any “unsolicited” or “inappropriate” electronic communications they receive
• Speaking to reporters: Prohibiting staff from speaking to reporters and traditional media about company-related issues even where the employee explains he has no authority to speak for the organization

Because the “protected concerted activities” doctrine is essentially unique to labor law in the United States—even Canada does not impose this rule—ensuring a social media policy complies with this particular doctrine is a domestic U.S. issue, not a concern abroad.

• Contrast law abroad: Consistent with U.S. NLRA § 7, other countries around the world also strictly prohibit management from discriminating against organized labor and labor organizing. Some countries even grant employee representatives full immunity from being fired. What is unique about American labor law is that NLRA § 7 extends its prohibition against labor-organization discrimination far beyond the niche issues of overt union organizing activity and protecting duly-elected employee representatives, and into countless scenarios entirely unrelated to unionization—even to protect workers who neither know nor care what a trade union is and who never mention organized labor.

Having said that protected concerted activity is a non-issue under labor law in other countries, for different legal reasons (that we will discuss), a strict social media rule against disparagement, inflammatory positions, disclosing HR information and the like will not necessarily be enforceable in all contexts in all countries worldwide. The point is that a social media rule void stateside because of NLRA § 7 is not necessarily void in other countries—and certainly is not void in other countries on grounds of “protected concerted activity.”

The protected concerted activity issue arises in two contexts as to global social media policies: (1) when a multinational headquartered anywhere tries to craft a single global social media policy to apply simultaneously both within and beyond the United States, and (2) when a U.S.-headquartered multinational tries to extend its domestic U.S. social media policy internationally.

As to the second context, the challenge is that protected concerted activity compliance has become part of the “DNA” of a well-drafted domestic U.S. social media policy. A multinational using a U.S.-compliant social media policy as a template or first draft for a global policy starts out with compromises or accommodations “baked into” the approach. For example, a compliant domestic U.S. social media policy probably lacks a robust rule against disparaging the employer on social media, and may lack a tough provision against stating inflammatory positions on social media.

• Laws actually clash: A U.S.-drafted social media policy that complies with the protected concerted activities doctrine will probably not forbid staff from disclosing information about their co-workers on social media. But requiring confidentiality of co-worker personal data can be a vital compliance step outside the United States (for example, under the European Union General Data Protection Regulation). On this particular point, laws actually clash: A provision in a social media policy requiring co-worker data confidentiality may actually be illegal stateside but mandatory in Europe. How can one global policy reconcile that conflict?

A multinational using a domestic U.S. social media policy as its starting point for a global policy should identify all the provisions—and identify all the missing provisions—in the U.S. version that reflect compromises or accommodations to comply with the NLRA. To export these compromised provisions into (and to continue to omit missing provisions from) a global version of a social media policy might have the U.S. “tail” wag the international “dog.” Whether to export such a compromised U.S. approach depends on:

• what precise social media rules the multinational prefers to impose worldwide
• how drastically the organization had to compromise its preferred rules in its U.S. social media policy
• to what extent the U.S. is the multinational’s workforce-demographic “center of gravity”
• the multinational’s tolerance for issuing separate HR policies across different countries

A completely separate ramification of U.S. NLRA § 7 plays into global social media policies in a very different way, albeit more peripherally. This separate context is no-solicitation clauses. Today’s social media policies often forbid workers from using company intranet social media platforms and chat functions to solicit for non-work-related causes like charities, community activities and selling personal property like Girl Scout cookies. Even a U.S. employer that does not object to workers using the company intranet for benign personal solicitations may nevertheless promulgate a broad no-solicitation rule as a union avoidance strategy, to be able to stop union activists from hijacking the company’s own intranet to promote union drives. (A workplace policy singling out union-related solicitations would violate NLRA § 7, but a strictly-enforced rule against all personal solicitations may be held non-discriminatory.)

This dynamic differs overseas. Outside the United States, workers organize in very different ways. And labor/management cooperation works in very different ways. Overseas, in some jurisdictions union activists may not need company intranets for organization drives, while in other jurisdictions labor laws may in effect require employers to let worker representatives use company tech platforms to advance labor representation. The point is that the reason for a rule against personal solicitation on company intranets may drop out abroad. This particular provision may be unnecessary globally, and be best localized to the United States.

This piece is largely based on an article originally published by Littler Mendelson, P.C., who holds the copyright.  It can be read here.

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