Many businesses and non-profit entities have prudently adopted social media and blogging policies to provide guidelines for employees who use these modes of communication. On May 30, 2012, in an attempt to address various concerns arising out of the enforcement of those policies, the Acting General Counsel of the National Labor Relations Board (NLRB) issued a report (the “Report”) declaring the NLRB’s viewpoint that various provisions commonly found in them are unlawful to the extent they limit employees’ ability to organize or engage in “concerted activity.” The Report limits the ability of employers to restrict their employees from utilizing and posting information on their and others’ Facebook walls, Twitter accounts, LinkedIn profiles and other blogs and social media sites, even when such use occurs during the workday or with company computers.
Prior to the recent pronouncements by the NLRB, most of the regulatory efforts regarding social media and blogging focused on its use for advertising purposes. For example, the 2009 Federal Trade Commission (FTC) guidelines for advertisements containing endorsements or testimonials1 focuses attention on “new media” as an advertising venue and requires truthful statements and appropriate attribution and disclosure when social media or other postings or comments are made by individuals related to or being compensated in any way by an entity. Unsurprisingly, the NLRB Report focuses on employment issues – specifically, what the NLRB and its staff believe to be unlawful restrictions on the rights of employees under the National Labor Relations Act. The Report highlights the NLRB’s position that social media, blogging and privacy policies cannot have a chilling effect on the right of employees to “engage in concerted activities”, organize or comment on their working conditions or other statutorily protected matters whether or not the employer is unionized.
The Report gives concrete examples of what the NLRB will view as unlawful provisions in company social media, blogging and privacy policies. The examples are based upon actual cases and summarize the findings and holdings as applied under the National Labor Relations Act. Many of these examples deal with privacy matters that can affect employees, customers, licensors, vendors and others. Some examples cover matters relating to confidentiality of company information, disclosure of trade secrets, and postings that contain company trademarks service marks, photographs and other materials belonging to the employer. Many of the examples and much of the Report’s discussion deals with the effect of the various company policies on the right of employees to communicate with each other using the newest modes of interpersonal communication.
The Report highlights the interplay between the needs of the business to control matters that affect its good name, trade secrets, products and services, and its obligation to comply with consumer protection and truth in advertising laws, on the one side, and the various laws, rules and regulations that protect speech, employee rights on the other side.