The National Labor Relations Board (NLRB) has become active in scrutinizing and striking down employers’ social media policies. Three times in the last year, the NLRB issued Operations Management Memoranda providing employers with direction on drafting and applying social media policies. The NLRB specifically evaluated social media policies to determine whether they violated the employee bill of rights in Section 7 of the National Labor Relations Act (NLRA). Section 7 gives employees the right to engage in “concerted activities” for mutual aid and protection. Simply put, it protects the rights of employees to discuss wages and other working conditions.
On May 30, 2012, the NLRB released its third and most recent memorandum on social media policies. In it, the NLRB reviewed seven social media policies, and upheld only one. In sum, the NLRB said that social media policies that could “reasonably be construed to chill Section 7 rights,” such as discouraging communication regarding working conditions among employees or requiring permission to engage in protected, concerted activity will be deemed unlawful. A policy need not explicitly prohibit protected speech to be unlawful. A policy that has a vaguely defined impact or which contains no limiting language can also be unlawful.
The main take-away points for employers are:
- Effective social media policies are essential for all employers subject to the NLRA because the same rules apply whether those employers are union or non-unioon.
- An employer prohibiting disclosure of confidential and proprietary information should be ready to narrowly define “confidential” and “proprietary”. Using examples helps prevent overbroad definitions.
- A prohibition against using the employer’s name or trademark should be narrowly tailored.
- An employer should be wary of instructing employees regarding posting photos, videos, quotes, or other content involving third parties. An outright prohibition of such postings – even though third party rights may be at issue – could be considered overbroad.
- An employer requiring employees to report certain activities or communications of others could be problematic, but an employer’s policy instructing employees to be cautious or even develop a healthy suspicion of persons trying to “trick” them into disclosing confidential information can be acceptable.
- A policy that requires an employee’s posts to social media sites to be “accurate and not misleading” could be overbroad if it is not clarified or further defined by example or otherwise.
- An employer should be very cautious when instructing employees to get prior employer approval before posting because such provisions could be deemed as inhibiting protected activity.
- A social media policy instructing employees to “think carefully” about friending colleagues is considered unlawfully overbroad because it can discourage communication among co-workers.
- A policy barring employees from disclosing “confidential guest, team member or company information” on social networking sites like Facebook or YouTube is unlawful because it can “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7.”
- An employer should ensure that any prohibition on “offensive, demeaning, abusive or inappropriate remarks” should be narrowly tailored and consider providing examples. The general prohibition could be overbroad because the prohibited remarks could cover “a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”
- An employer should be careful when considering how and whether to restrict employees’ comments on legal matters, litigation, or disputes because it could restrict employees from discussing the protected subject of potential claims against the employer.
Amid the various defunct social media policies, the NLRB – after possibly realizing how difficult it is for an employer to balance their legitimate concerns regarding social media with the NLRB’s various prohibitions – attached a sample of a lawful social media policy to the May 30, 2012 memorandum. The approved policy provides a guidepost to all employers who wish to craft a lawful social media policy for their workforce. However, relying upon the guidance issued by the NRLB, including the recent Operations Management Memorandum, is not a guarantee of compliance with the law. The NLRB’s rulings are subject to review by federal appellate courts. Although the opinion of the NLRB is obviously important to the courts, it is not conclusive, and the courts may disagree. Therefore, employers should always consult with counsel whether the company has a social media policy, if it is contemplating developing one, or if it is considering disciplining an employee for violating its social media policy.