The ’savings clause’ for employer social media policies

In the post “Internet-prompted firings: Are they lose-lose for employers?” employment law attorney Elijah Yip suggested that employers could include a “savings clause” in their social media polices to let employees know that such policies aren’t meant to restrict employees’ Section 7 rights. An astute reader noted that he had read an article mentioning that savings clauses might not work, “even when the statutory provisions in Section 7 of the Act are quoted.” In this post, Yip addresses that concern.

by Elijah Yip

The National Labor Relations Board (NLRB) continues to issue guidance on social media policies—some of which can seem confusing. However, there is a provision you can include in your policies to help you comply with the law, and it has a heroic name: the savings clause. Essentially, a savings clause is a disclaimer that says something along the lines of “this policy shouldn’t be interpreted to prohibit X.” Theoretically, the clarification “saves” a policy from being illegal.

Generally speaking, including a savings clause in a social media policy is a good idea. It doesn’t automatically make the policy “legal,” but it can be effective if written well. In a recent decision, the NLRB was critical of Costco’s social media policy because it didn’t contain a disclaimer stating that it wasn’t intended to interfere with employees’ right under the National Labor Relations Act (NLRA) to engage in protected activity. With that in mind, here are some tips from NLRB decisions and memos on how to use savings clauses:

  • A savings clause doesn’t save explicit prohibitions against protected concerted activity. There are some policies that even a savings clause can’t improve. If your policy specifically prohibits protected concerted activity or could lead an employee to reasonably believe that it does, inserting a savings clause into the policy is of little use.
  • Use terms your employees can understand. The NLRB has criticized savings clauses for using legal jargon and terms such as “concerted activity.” Avoid using legal language that employees who don’t have legal training might not understand; use plain English instead.
  • Don’t be vague. If a savings clause is too vague, it won’t “save” anything. A good savings clause must be specific enough to tell employees how your social media policy should be interpreted. A generic statement that the policy is intended to comply with the law means little without context. Stating that it will be enforced according to a specific law (e.g., the NLRA) is better, but that’s not good enough. That leads to the next tip.
  • Identify the type of activity being “saved.” The NLRB’s October 19, 2012, advice memo states: “Rules 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 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 is a good example because it (1) specifically identifies the kind of activity permitted and (2) eliminates any doubt about whether other policy provisions might prohibit activity protected under the NLRA.

Elijah is a partner with Cades Schutte LLP in Honolulu and chair of its digital media and Internet law practice group. He is a frequent contributor to Hawaii Employment Law Letter and author of the blog LegalTXTS blog. He may be contacted at eyip@cades.com.

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