On May 30, 2012, the Office of the General Counsel for the National Labor Relations Board (NLRB) released its third report on social media cases. The previous reports released by the NLRB on social media are available here and here.
The NLRB’s new report summarizes seven cases and describes the NLRB’s analysis for determining whether an employer’s social media policy is overbroad in violation of Section 7 of the National Labor Relations Act (NLRA). Section 7 protects the rights of employees to engage in form, join, or assist labor unions as well as to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See 29 U.S.C. § 157.
The most useful part of the NLRB’s new report is the inclusion of a model social media policy that the NLRB determined was lawful. The model policy is located on the last three pages of the report. In explaining why the model policy is deemed lawful, the report emphasizes that the policy provides examples of clearly illegal and unprotected conduct as well as examples of what types of confidential information should not be disclosed.
Takeaways: The NLRB’s guidance on social media policies is not a model of clarity. However, several major themes are consistent in the NLRB’s guidance regarding the elements of a good social media policy:
- Provide Examples of Prohibited Conduct: Providing examples of plainly egregious behavior in which employees should not engage helps provide context and eliminates ambiguity about whether the exercise of Section 7 rights is prohibited.
- Define Confidential Information: Defining what types of confidential information should not be disclosed will decrease the risk that the NLRB will regard a prohibition against disclosure of confidential information as overbroad.
- Include Limiting Language: Limiting language emphasizing that a social media policy is not meant to restrict Section 7 rights is, in itself, not sufficient to make the policy lawful. Nor is it necessary for a policy to be lawful. Nevertheless, including limiting language can help minimize the risk that a policy will be found to be overbroad under the NLRA.
Following the tips above and using language from the model social media policy published by the NLRB will help increase the odds, but likely cannot guarantee, that a social media policy will be found to be lawful under the NLRA.