Locke Lord QuickStudy: Practice Tips for Employers’ Social Media Policies

2. Define terms so that policy language is not open to multiple interpretations.

Chipotle’s policy contained language that the Board found vague and thus subject to an interpretation that it was prohibiting protected activity. Without carefully defining the terms, employers should avoid using language such as “employees are prohibited from making disparaging, false or misleading statements about or relating to” their employer. If the terms “disparaging,” “false,” or “misleading” are not defined in the policy, they are likely too vague and could be held in violation of the NLRA even if the employer did not try to enforce its policy. In addition, the Chipotle decision teaches that an employer cannot punish employees for statements that are simply false or misleading, but instead, can only regulate employee comments with a malicious intent to harm it.

3. Employers may be able to prohibit employees from making harassing or discriminatory statements.

In the Chipotle decision, the Administrative Law Judge determined that prohibiting harassing and discriminatory statements was an acceptable limit on employee social media use because a typical, reasonable employee understands the terms harassing and discriminatory. Because the General Counsel did not file an objection to this finding, the NLRB did not address this issue.