Acknowledging that “(e)mployee use of social media as it relates to the workplace continues to increase, raising various concerns by employers,” on 30 May 2012, the National Labor Relations Board (NLRB) Acting General Counsel Lafe E. Solomon issued his third and latest report on social media cases. The prior two reports, which were issued on 18 August 2011 and 24 January 2012, summarized a total of 28 cases that had been investigated by the General Counsel’s office. While these prior reports evaluated various actions taken by employers in response to employee use of social media, the third report provides specific guidance on how to construct a lawful social media policy. In the report, Solomon takes a narrow view of what types of policy provisions are acceptable and instructs, for example, that certain confidentiality provisions, rules against “friending” co-workers, and blanket prohibitions of disparaging remarks are unlawful because they unduly restrict employees’ rights to discuss working conditions and terms and conditions of employment under the National Labor Relations Act (the “Act”).
Although the courts have not evaluated the standards to be applied in social media cases, the General Counsel’s office investigates unfair labor practice charges and decides whether to issue complaints, so its three social media reports provide useful insight into the circumstances under which the current NLRB will exercise its enforcement discretion against employers who discipline employees based on their use of social media.
Unlawful and lawful provisions
In the report, Solomon dissects seven corporate policies and finds that all but one contained provisions that interfered with the rights of workers under the Act. The single policy that passed muster was a policy by Wal-Mart Stores, Inc. The policy is attached to the report as a sample and can be found, along with the report, on the NRLB’s website here.
According to Solomon, the central question in determining whether a workplace rule is lawful is whether it “would reasonably tend to chill employees” in the exercise of their rights under the Act to engage in union activity or other protected, concerted activity, particularly the right to communicate with other employees about working conditions and terms and conditions of employment. Solomon concluded that many of the policy provisions at issue violate the Act because they are ambiguous and can be interpreted as prohibiting employees from engaging in protected communications with other employees.
Examples of policy provisions that the General Counsel’s office would consider unlawful include:
- A rule that employees not post confidential, non-public or, non-proprietary information about the employer, because, without clarification, it is so vague that employees would reasonably construe it to include subjects that involve their working conditions and information concerning terms and conditions of employment.
- A rule that employees should “avoid harming the image and integrity of the company,” because employees could reasonably construe it to prohibit protected criticism of the employer’s labor policies or treatment of employees.
- A rule that employees not share confidential information with co-workers or have such discussions in work or public areas.
- Rules that require employees to secure permission from the employer prior to engaging in activities protected under the Act.
- Rules that prohibit employees from posting photos and content belonging to others without first obtaining the owner’s permission, because they interfere, for example, with employees’ protected right to take and post photos of employees on a picket line or employees working in unsafe conditions.
- Rules that prohibit employees from using the employer’s logos and trademarks, because non-commercial usage of such marks while engaging in protected activities, e.g., picketing, would not infringe on the employer’s proprietary interests.
- Blanket rules that prohibit employees from making offensive, demeaning, disparaging, or defamatory remarks, because, without further elaboration, they proscribe a broad range of communications that would include protected criticisms of the employer’s labor policies or treatment of employees.
- An instruction that employees should “(t)hink carefully before ‘friending’ co-workers,” because it would discourage communications among co-workers and thus interfere with protected communications.
- Rules prohibiting the disclosure of personal information about the employer’s employees, because, in the absence of clarification, employees would reasonably construe them to include information about employees’ wages and their working conditions.
- A rule prohibiting employees from commenting on any legal matters, including pending litigation or disputes, because it restricts employees from discussing the protected subject of potential claims against the employer.
- A rule prohibiting employees from expressing their personal opinions to the public or the media regarding “the workplace, work satisfaction or dissatisfaction, wages(,) hours or work conditions.”
Examples of the few provisions that Solomon found lawful included the following:
- An admonishment that employees be cautious about divulging confidential information but which does not proscribe any particular communication.
- Prohibitions on discussing the employer’s trade secrets, confidential information, and attorney-client privileged information (e.g., information regarding the development of systems, processes, produces, know-how, technology, internal reports, procedures, or other internal business-related communications), where the provision included examples of prohibited disclosures that sufficiently demonstrated to employees that protected communications about working conditions were not included.
- An instruction that employees “(u)se (their) best judgment and exercise personal responsibility...whenever (they) participate in social media or other online activities.”
- Prohibitions on online harassment, bullying, discrimination or, retaliation.
- A rule forbidding “statements which are slanderous or detrimental to the company” that appeared on a list of prohibited conduct including “sexual harassment” and sabotage.
- A rule requiring employees to obtain prior authorization before posting a message that is either in the employer’s name or could reasonably be attributed to the employer.
In light of the above, employers should be cautioned that a poorly-written social medial policy can be worse than no policy at all. Employers that wish to implement a policy should work with legal counsel to craft a policy that is as narrowly tailored as possible, keeping in mind the following:
- The policy should include limiting language and examples of clearly illegal or unprotected conduct, such that it could not reasonably be construed to cover protected activity. For example, a rule that simply prohibits “statements which are slanderous or detrimental to the company,” may be overly broad, but when clarified by examples such as “sexual harassment” or “sabotage,” such a prohibition may not reasonably be interpreted as preventing employees from discussing the terms and conditions of their employment.
- For every rule, employers should ask whether the rule may reasonably be interpreted to restrict or prohibit employees from engaging in protected activities, such as communicating about working conditions or terms and conditions of employment — e.g., whether it would discourage or prevent employees from discussing working conditions, wages, or the employer’s labor policies or treatment of employees.
- While employers can include a general disclaimer or “savings clause” indicating that the policy will be administered in compliance with applicable laws and regulations, or that the policy should not be construed to limit employees’ rights under the Act, the reports indicate that the NLRB General Counsel’s office will not consider such a clause to cure any ambiguities within specific provisions. A more successful strategy may be to include specific disclaimers alongside particular provisions that make clear to employees that the rule does not restrict their ability to engage in protected activity.
- The Wal-Mart social media policy may be used as a starting point as a sample of a lawful policy.