The NLRB Office of General Counsel issued a third report addressing employers’ use of social media policies. The report summarizes the NLRB’s review of the social media policies of seven companies and its findings with respect to whether such policies impermissibly inhibit employees’ rights to discuss the terms and conditions of their employment with other employees and third parties. The social media policies reviewed by the NLRB address, among other things: (1) rules governing employees’ use of social media; (2) guidelines on privacy, legal matters, online tone and resolving concerns; and (3) protecting information, expressing opinions, and bullying.
According to the NLRB, policies that seek generally to prevent the “release of confidential guest, team member or company information,” are inappropriate absent specific examples that clarify that the restriction does not apply to an employee’s right to discuss wages and conditions of employment with other employees and third parties. Similarly, the NLRB considers policies that seek to require employees to be “completely accurate and not misleading” in any posts to social media sites to be overbroad and lacking specific examples or guidance. In addition to addressing other provisions the NLRB finds to be overbroad, the report includes a sample social media policy that the NLRB finds acceptable.
On the whole, the report finds that policies and rules that are ambiguous regarding their application to protected activity and contain “no limiting language or context to clarify that the rules do not restrict” an employee’s right to engage in protected activity are unlawful. However, employer policies and rules “that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.”
The full report can be viewed here.