iCould a savings clause salvage an otherwise invalid social media policy? Maybe. There is no definitive
answer to this question, as savings clauses have been portrayed as both a potential asset for employment handbooks and a non-factor in acting as a loophole for Section 7 of the National Labor
Relations Act (NLRA). Thus, it is important to view savings clauses as one tool in your arsenal and not as a panacea for an overly-broad social media policy.
A well-written savings clause is a provision added to your employment handbook as a legal catchall
disclaimer that informs employees that any and all rules encompassed in the company’s social media policy do not infringe upon the rights of employees to engage in group activity that is protected by federal law – i.e., the policy is not meant to discourage the activities protected by Section 7 of the NLRA. It seems these broad disclaimers, when coupled with a broadly written policy, may not be the answer.
As we discussed in NLRB and ALJ Decisions Continue to Refine Social Media Policy Parameters
earlier this week, Administrative Law Judge Clifford H. Anderson ruled against EchoStar Corporation
finding their social media policy restricting employees from making critical comments illegal, even
though EchoStar’s handbook did have a savings clause. Prior to the EchoStar decision, the National
Labor Relations Board (NLRB) issued its first decision and order on social media policies in the Costco Wholesale Corporation’s case. The NLRB found that the policy which prohibited employees from posting damaging comments about the company or employees that would be harmful to their reputations was unlawful. Both policies were found to be too broad and could lead to impeding employees’ rights to engage in protected concerted activities, as outlined in Section 7 of the National Labor Relations Act (NLRA). The Costco policy was criticized for not only being too broad, but also for not providing specific examples of activity that would constitute a violation. Essentially both decisions pressed for more specific terms in social media policies. Where they differ is in the existence of a savings clause. Costco did not include a savings clause in their employee handbook, and the NLRB indicated a possibility that a savings clause may have neutralized the policy’s shortcomings, whereas the EchoStar’s savings clause was not enough to protect the policy.
It is fairly clear by these two rulings that a savings clause is not going to fix an already flawed social
media policy. That is not to say that you should not include one in your social media policy and
employee handbook. Savings clauses are helpful and important disclaimers to have in general. However, it seems that both the social media policy and the savings clause need to be detailed in addressing the intended terms of the employer. Specific language is the key. Before updating or adding a savings clause to your handbook, have it reviewed by an attorney. Make sure that your social media policy includes examples of violations and precise language, and keep abreast of the developments in policy law, as it will likely continue to change as quickly as social media itself.
