On May 30, 2012, the National Labor Relations Board’s (NLRB) Acting General Counsel issued a report, applicable to union and non-union employers alike, intended to clarify the NLRB’s position on social media policies. To this end, the General Counsel issued an Operations-Management Memo discussing seven recent cases and providing a sample of a lawful social media policy. Unfortunately, that sample policy appears to be, at least in part, in conflict with the very cases the General Counsel discusses in his report. Nonetheless, the report is useful in its guidance that broadly worded social media policies whose provisions can be interpreted to prohibit employees’ activities protected by Section 7 of the National Labor Relations Act will be found unlawful.
- A Social Media Policy Prohibiting Disclosure Of Confidential Information Must Define Its Scope.
The NLRB found a social media policy that generally instructed employees not to “release confidential guest, team member or company information” unlawful because employees would reasonably interpret the provision to prohibit employees from discussing and disclosing their conditions of employees among themselves or with third parties. Similarly, the NLRB found the following provisions overbroad because, without a specific definition of confidential or non-public information, employees could reasonably construe such language as precluding them from discussing the terms and conditions of employment:
- Prohibiting “share[ing] confidential information” with coworkers unless they needed the information to do the job.”
- Prohibiting posting information regarding the employer that could be deemed “material, non-public information, or confidential or proprietary information.”
- Prohibiting “reveal[ing] any non-public company information on any public site.”
- Instructing employees to avoid “harming the image and the integrity of the company” is unlawfully overbroad.
Strangely, the NLRB found unlawful a provision that encouraged employees to be suspicious if asked to reveal confidential information.
- A Social Media Policy Must Be Specific In The Type Of Posts It Seeks To Restrain.
The NLRB found that a policy that instructed employees to be sure their discussions or posts “relating to the employer” are “completely accurate and not misleading and that they do not reveal non-public information on any public site” was unlawful because use of the phrase “completely accurate and not misleading” would reasonably be interpreted to apply to the employer’s labor policies and its treatment of employees. Posts and discussions related to Section 7 activity are protected under the NLRA unless the posts are maliciously false.
Similarly, the NLRB found unlawful provisions that did not clarify what image, photos, quotes, personal information or content employees were prohibited from posting. For instance, in one case the NLRB found unlawful a policy that prohibits employees from posting photos, music, videos, and the quotes and personal information of others without obtaining the owner’s permission and ensuring that the content can be legally shared and from using the employer’s logo and trademarks because employees would construe this provision to prohibit them from using photos and videos of employees engaged in Section 7 activity.
- A Social Media Policy Must Be Specific As To The Quality Of Comments It Seeks To Address.
The NLRB found unlawful provisions that instruct employees that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” because the provision could reasonably be read to include protected criticisms of the employer’s labor policies or treatment of employees. The NLRB noted that the instruction: “statements that would be inappropriate in the workplace are also inappropriate online” is ambiguous as to its application to Section 7 because it does not specify which communications the employer would deem inappropriate at work. Policies that preclude employees from making “disparaging or defamatory comments” are likewise unlawful because employees would reasonably construe this policy to preclude criticism of the employer’s labor policy or treatment of employees.
Perplexingly, the General Counsel found lawful a provision providing that “any harassment, bullying, discrimination or retaliation that would not be permissible in the workplace is not permissible online…..” It is unclear why such a statement would have any different effect on employees’ Section 7 activities than would a provision instructing employees not to use offensive, demeaning or inappropriate remarks. It appears to be a distinction without a difference if the workforce is truly as ignorant of their rights as the NLRB seems to believe.
- Do Not Prohibit The Reporting Of “Inappropriate” Activity Without Defining What Constitutes “Inappropriate” Behavior.
The NLRB found unlawful provisions of social media policies that required employees to “report any unusual or inappropriate internal social media activity” or “report any unsolicited or inappropriate electronic communications.” In each case, the NLRB concluded that the term “inappropriate activity” and “inappropriate communications” were sufficiently undefined so as to be read to restrain employees exercise of their Section 7 right to communicate with each other and with third parties regarding terms and conditions of employment.
- A Disclaimer Will Not Cure An Otherwise Unlawful Policy.
Finally, the NLRB noted in a number of the cases that a savings clause cannot cure otherwise unlawful provisions of an employer’s social media policy because in the NLRB’s view the employees would not understand from the disclaimer that Section 7 activities are permitted.
Employers should carefully craft language that makes clear their social media policy permits Section 7 activity and, to the extent possible, they should include examples of permissible and impermissible conduct on the part of employees so as to clarify and limit the scope of a rule that might otherwise be considered unlawful. To the extent that an employer wants a high degree of certainty that its policy will be found lawful by the NLRB, it should use the sample policy the NLRB has provided in its memo as a template and speak with experienced labor counsel to tailor the policy to the employer’s specific needs.