Social Media Superhero? – Tips For Using a Savings Clause to Rescue Your Social Media Policy
The steady flow of memos and decisions on social media from the NLRB in the last two years regarding social media has left many employers bewildered about the do’s and don’ts of social media policies. The NLRB has been rather active in striking down social media policies for unlawfully restricting activity protected by Section 7 of the National Labor Relations Act (NLRA). In the midst of this confusion, allow me to direct your attention to a little feature with a heroic name – the Savings Clause. A Savings Clause is a statement that sets boundaries around a social media policy. It’s basically a disclaimer. It says something along the lines of, “this policy should not be interpreted to prohibit X,” and theoretically, that clarification should “save” a rule from being illegal. Pretty nifty, eh?
Now, before you think popping a Savings Clause into a social media policy will magically shield you from legal trouble, it’s a bit more complicated than that. The NLRB has spoken on Savings Clauses in social media policies since its Office of the General Counsel (OGC) issued the third memo on social media on May 30, 2012. The NLRB also weighed in on Savings Clauses in its September 18, 2012 decision striking down Costco’s social media policy (the first NRLB decision addressing social media issues); its September 25, 2012 decision striking down Echostar Technologies’ social media policy; and the OGC’s Advice Memorandum issued on October 19, 2012. The fact that the NLRB has issued all this “guidance” should give employers pause about thinking that Savings Clauses are simple to write. They’re not. But NLRB guidance suggests that Savings Clauses can be effective if written well.
Here are some tips on using Savings Clauses drawn from NLRB decisions and memos.
1. Having a Savings Clause is a good idea.
This might seem obvious, but it’s generally a good idea to include a Savings Clause in your social media policy. The NLRB was critical of Costco’s social media policy for not including any type of disclaimer stating that the policy was not intended to interfere with the employees’ rights to engage in activity protected by the NLRA. The NLRB did not go as far as to say that the policy’s other defects would have been cured by a Savings Clause, but the fact that it criticized a social media policy for not having any Savings Clause strongly suggests that having one could only help.
2. Savings clauses don’t save rules that explicitly prohibit concerted, protected activity.
There are some policies even a Savings Clause can’t make better. For example, the OGC’s May 30, 2012 Memo examined a policy that prohibited employees from posting information about employer shutdowns and work stoppages, and from speaking publicly about the workplace, work satisfaction or dissatisfaction, wages, hours, or work conditions. The Savings Clause in the policy stated:
This policy will not be interpreted in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.
The NLRB said that an employee reading the policy would reasonably conclude that the policy prohibited protected activities despite what the Savings Clause said. The lesson here is that a policy can’t forbid activity protected by the NLRA and then expect a Savings Clause to rescue the policy from being unlawful.
3. Use terms your employees can understand.
The Savings Clause in the policy we looked at in the last bullet point suffered from the additional problem of using the term “concerted activities.” The NLRB criticized the clause for not explaining to a layperson what the right to engage in “concerted activity” entails. Lawyers might understand what “concerted activity” or “protected activity” refer to, but employees without legal training might not. Avoid using legal terminology in the Savings Clause. Use plain English instead.
4. Don’t be vague.
A Savings Clause can’t be too vague, or it won’t end up “saving” anything. So what’s considered vague?
A Savings Clause stating that if the policy conflicts with law, “the appropriate law shall be applied and interpreted so as to make the policy lawful” is too vague, according to the NLRB’s Echostar decision. A good Savings Clause must be specific enough to give employees an idea of how the social media policy will be interpreted. A generic statement that the policy is intended to comply with the law means little unless the employer provides some context for the statement.
What if the Savings Clause made the policy subject to a specific law, like the NLRA? That’s better, but still not good enough. The OGC’s May 30, 2012 Memo disapproved of two Savings Clauses, one stating that the policy “will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act),” and another stating that the policy “will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.” The NLRB found both Savings Clauses too vague to cure the policies from being overbroad.
So just how specific should a Savings Clause be? That leads us to–
5. Identify the kind of activity being “saved.”
The OGC’s October 19, 2012 Advice Memo emphasized the importance of drafting rules that provide employees with context. “[R]ules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, so that they would not be reasonably construed to cover protected activity, are not unlawful,” the Advice Memo explained. A Savings Clause can help provide the needed context. The Advice Memo approved of Cox Communications, Inc.’s social media policy, which contained the following Savings Clause:
Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities.
This Savings Clause specifically identified the kind of activity that is permitted—employee communications regarding wages, hours, or other terms and conditions of employment—so as to eliminate any doubt that other rules in the policy might prohibit activity that is protected by the NLRA.
In sum, I hope these tips will help you get the most out of Savings Clauses.