The question of just what employers are legally allowed do when it comes to regulating what their employees say and do on social networking platforms is far from settled. But an ongoing back-and-forth between a handful of companies and the National Labor Relations Board is moving things in that direction.

On May 30, the NLRB released a 24-page memo listing several provisions from social media policies at General Motors, Target, and Dish Network, finding many to be in violation of sections 7 and 8 of the National Labor Relations Act, the ones that guarantee rights to organize and "engage in other protected concerted activities."

For example, a provision in one policy limiting the release of "confidential guest, team member, or company information" is problematic, the memo states, in that it could "reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves."

It isn't clear whether those findings mean companies ought to start taking big red pens to their social media policies just yet, though. The NLRB's memo isn't legally binding, and as GM's case proves, the board's findings may not match up with a court's.

GM's case

A decision from the NLRB's Division of Judges dated the same day as the memo from its Office of General Counsel found that many of the provisions deemed unlawful in the memo actually comply with the law.

Judge Ira Sandron writes that restrictions on use of company logos; entreaties to avoid demeaning, abusive, and inappropriate remarks; a request to "think carefully about friending coworkers," and instruction to report unusual or inappropriate activity on internal social networks aren't in violation. The memo from General Counsel Lafe Solomon argues all those provisions are against the law.

Only one area, according to Sandron, goes over the line: a provision that prohibits employees from discussing the company's financial performance or personal information about other employees.

"Confidentiality policies may chill employees' exercise of protected activities; the central question is whether employees would reasonably read a rule on confidentiality as prohibiting a discussion of wages and working conditions," he wrote.

The judge's decision orders GM to rescind any rule that violates the law.

Mary Henige, director of social media and digital communications for GM, says the company is "reviewing the decision and considering next steps."

"We're pleased that the judge agreed that GM's social media policy is compliant with the law in most areas," she says.

The automaker can appeal the decision.

Target and Dish Network

Target spokeswoman Molly Snyder offered her company's terse response to the NLRB's findings.

"Target is committed to following all local, state, and federal laws," she says. "As we intend to appeal the ruling, we don't have anything additional to share at this time."

A Dish Network spokesman declined to comment for this story.

What it all means

In a blog post published the same day as the NLRB memo, attorney Molly DiBianca of the firm Young Conaway Stargatt and Taylor called the memo and two previous reports "a whole lot of nothing." Why?

"If you are an employer, there is just about no way you can draft a policy that addresses employees' off-duty use of social media that you can feel confident will not potentially run afoul of the [National Labor Relations Act]," she wrote. She continued, "They have effectively prevented numerous employers from implementing a social-media policy."

Then again, there are no real consequences, DiBianca wrote: "The risk of having a policy that is later found to be in violation of the NLRA is that you would have to change your policy and put up a posting about the change."

Still, attorney Bruce Johnson of the firm Davis Wright Tremaine says the NLRB can make that happen if it convinces judges that forbidding employees from complaining about their employers online is tantamount to forbidding picketing.

"The lesson is, in drafting such policies, consider the implications of any strict policy on employees' rights to collective action," he says.

Shel Holtz of Holtz Communication + Technology notes that companies have already been forced to change rules regarding what employees can say on sites such as Facebook, and he says he advises his clients to comb through their policies.

"If your policy restricts employees from 'liking' one another on Facebook, that's a problem," he says. "Employees have the right to communicate with each other. They have the right to talk about work and working conditions, to talk to the press under certain conditions, and to talk passionately."

Matt Wilson is a staff writer for Ragan.com.

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