In the latest installment of the National Labor Relations Board’s (“NLRB”) saga on social media, its Acting General Counsel has released a new report discussing social media policies. The NLRB’s previous social media report focused largely on employee terminations, with a discussion of employer policies only as a secondary focus (see NLRB Issues New Report on Facebook Firings).
This report, however, focuses exclusively on social media policies and … (drumroll, please) actually provides a copy of an employer’s social media policy the NLRB found lawful – in its entirety!
The most interesting aspect of the report to me? The incredible importance the NLRB places on context. Nearly identical policy language may be lawful (according to the NLRB) in one context, but unlawful in another. Let me show you a few examples:
Example No. 1:
USE GOOD JUDGMENT ABOUT WHAT YOU SHARE AND HOW YOU SHARE
If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site.
Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.
Example No. 2:
TREAT EVERYONE WITH RESPECT
Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.
You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet. [Employer] encourages employees … to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.
Example No. 3:
“Don’t release confidential guest, team member or company information. …”
“Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”
It appears to me that the NLRB’s reasoning behind why similar language is either lawful or unlawful focuses a lot on whether the policy provides sufficient context or examples to narrow the language to prohibit conduct that is “plainly egregious … such as discrimination and threats of violence” or whether the language is so vague that employees could interpret it to cover protected activity.
Similarly, it appears that the NLRB will consider language relating to protection of confidential information lawful if it is closely tied to the protection of trade secrets and confidential business or company financial information, but will consider such language unlawful if it is broad enough to cover confidential employee information. That type of language, according to the NLRB, could be interpreted to include information regarding an employee’s terms and conditions of employment (think, for example, of an employee’s wage or benefit information).
Now, this report is merely guidance from the NLRB’s Acting General Counsel and is not legally binding. However, the Office of the General Counsel directed the memo to its Regional Directors – and the Regional Directors determine when to issue complaints under the NLRA. (We can hope that the Regional Directors will follow this guidance since they report to the Office of the General Counsel!) It also remains to be seen whether administrative law judges or courts will issue rulings that are consistent with this report.
From a practical perspective, this report underscores to me the reality that the law in this area is constantly evolving and policies on social media will need to evolve as well. What do you think? Is the report helpful? Or are you left feeling that too much of this is in the eye of the beholder? As always, we welcome your input.