Can I Protect My Trade Secrets Via Social Media Policy?

Author:Mr John Donovan
Profession:Fisher & Phillips LLP

Everybody in the modern workforce is involved in social media in one way or another. Think about it. Even if your company does not utilize social media (which is becoming less and less likely), it is almost certain that your company's employees do.

Whether or not your company has a policy regarding social media is another matter. As is recommended, more than half of all employers now have formal social media policies in place. Sometimes these policies are simple, and state only that employees are not to engage in social media activities (i.e., surfing Facebook) while on company time. Other policies are more comprehensive, and dictate what employees may or may not say about their employer, or reveal about their employer, via social media. It is the latter type of policy that has some employers running afoul of the National Labor Relations Board (the "Board").

Trade Secrets, Social Media, and the Board

The problem arises when a company's policy dictates that employees may not communicate, via social media, confidential or proprietary company information.

As a refresher, the Board is the federal agency that enforces the National Labor Relations Act, or "NLRA." The NLRA grants nearly all private-sector employees (regardless of whether they are unionized or non-unionized) the right to act together to improve their wages or working conditions.

More specifically, the Board protects the rights of employees to engage in "concerted activity," which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action.

From the Board's website, some examples of protected concerted activities are:

Two or more employees addressing their employer about improving their pay; Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other; and An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions. Amazingly, the Board has taken the position that many social media policies, which are (in part) intended to protect company trade secrets and confidential information from dissemination via social media, could be interpreted as prohibiting employees from...

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