Demonstrating the National Labor Relations Board’s (NLRB) continuing aggressive focus on challenging employer social media policies, on May 30, 2012, NLRB Acting General Counsel Lafe E. Solomon issued a new report on employees’ social media use. The general counsel’s office investigates unfair labor practice charges and decides whether to issue complaints to be considered by NLRB administrative law judges and the board.
The report described six corporate policies that Solomon alleged interfered with the rights of employees under the National Labor Relations Act (NLRA), and one revised policy statement that he found was lawful. In this third General Counsel Memorandum on Social Media in less than a year, Solomon continued to take the enforcement position that social media rules and policy statements violate the NLRA where employees would reasonably interpret them as limiting their exercise of the right to speak collectively about their wages and other working conditions as guaranteed by the NLRA.
But, importantly, the general counsel also showed that employers can draft a lawful social media policy that prohibits much of the misconduct that concerns employers. The general counsel concluded that because Wal-Mart’s social media policy gives specific examples of the kinds of communications that are prohibited, employees would not view the policy as restricting protected communications. The Wal-Mart Policy, which is reprinted in full in the report, gives employers significant guidance on how to craft a social media policy that will survive NLRB scrutiny.
It is important to note that the NLRB’s general counsel does not ultimately decide whether policies or other employer conduct violate the NLRA, and employers retain the right to challenge his conclusions. This policy statement does, however, state the enforcement position that the NLRB will take in response to challenges to employers’ policies and means that employers whose policies violate the standards set out in the report may face challenges before the NLRB.
Focus on Employer Policy Statements - Mere Issuance or Maintenance of Overly Broad Policies Can Violate NLRA
In the new report, Solomon repeated his earlier guidance that an employer policy can violate Section 8(a)(1) of the NLRA by interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the NLRA to engage in union activity or protected concerted activity for their mutual aid or protection - even if it is never enforced. An employer violates the NLRA if it maintains a work rule that employees would reasonably understand to prohibit activities or communications about wages and working conditions protected by the NLRA.
The NLRB uses a two-step inquiry to determine if a work rule would have such a prohibited effect. “First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights,” Solomon wrote.
Confidentiality Rules May Violate NLRA
In the first case Solomon addressed, the employer had a handbook section titled “Communicating confidential information.” The handbook made no mention of unions or Section 7 activity, but Solomon still concluded that portions of the policy are unlawful.
Specifically, Solomon found unlawful a provision of the handbook that told employees to “[m]ake sure someone needs to know” before sharing confidential information with co-workers. According to Solomon, this language interfered with employees NLRA rights because “[e]mployees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment.” “Indeed,” he wrote, “the rules explicitly prohibit employees from having such discussions in the breakroom, at home, or in public places ? virtually everywhere such discussions are most likely to occur.”
Solomon also found unlawful a handbook provision that warned employees, “We’re serious about the appropriate use, storage and communication of confidential information,” and cautioned that employees could be disciplined, discharged or “subject to legal action, including criminal prosecution” for violating the employer’s confidentiality policy or failing to report policy breaches. This provision “would be construed as requiring employees to report a breach of the rules governing the communication of confidential information set forth above.” Because “we found those rules unlawful, the reporting requirement is likewise unlawful,” Solomon stated.
General Motors’ Policy Violates the Law
In General Motors LLC, No. 7-CA-53570, General Motors maintained a social media policy that told employees any online postings by employees should be “completely accurate and not misleading” and should not reveal “non-public company information” on any “public site.” Nonpublic information was defined to include information “related to” the company’s financial performance, as well as personal information about employees. The policy also advised employees that if they were in doubt about posting information, they should first check with corporate communications or legal representatives “to see if it’s a good idea.”
Solomon found that this policy violated the NLRA in several ways. First, employees would read the provision of the policy directing employees not to reveal “personal information about employees” to prohibit them from discussing wages and terms and conditions of employment of other employees. But the NLRB has repeatedly ruled that employees have a right to discuss their and other employees’ wages and employment conditions. Also, Solomon noted that the NLRB has prohibited policies that require employees to secure permission before exercising Section 7 rights; he concluded that the provision of the General Motors policy requesting that employees check with management before posting “personal information about employees” violated the NLRA. The same day that Solomon issued his report, an administrative law judge of the NLRB concluded that General Motors’ social media policy violated the NLRA, as the general counsel had asserted.
Policies Regulating Tone and Content of Social Media Posts May Violate Employee Rights
In several other cases, Solomon concluded that employer policies that attempted to police or moderate the tone or content of online communications violated the NLRA.
In McKesson Corp., No. 6-CA-66504, the challenged policy counseled employees, “Don’t pick fights” and reminded employees to communicate in a “professional tone” without making “objectionable or inflammatory” comments. The acting general counsel found such provisions to be unlawful, stating that “[d]iscussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion.” Without further clarification of what is “objectionable or inflammatory,” he said, “employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.”
Vague Rules Unlawful, But Bullying Ban Legitimate
In Clearwater Paper Corp., No. 19-CA-64418, Solomon concluded that the mere maintenance of a rule prohibiting employees from posting “material non-public information” about an employer, or posting “confidential or proprietary” information of the employer, interfered with employees’ NLRA rights. The restriction on posting “material non-public information” was so vague that employees would reasonably understand it to bar disclosures concerning their working conditions. Similarly, a bar against disclosure of “confidential” information would, unless clarified, be understood to prohibit employees from discussing their wages or other employment conditions, Solmon wrote.
But the acting general counsel concluded that the company’s prohibition on “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace ... even if it is done after hours, from home and on home computers,” did not violate the NLRA because it “would not reasonably be construed to apply to Section 7 activity” and because the rule gave employees a list of examples of prohibited acts, such as bullying and discrimination.
Prohibitions on Public Statements and Reporting Requirements Considered
In Us Helping Us, No. 5-CA-36595, Solomon found unlawful an employer’s policy that required employees to report to management any “unsolicited or inappropriate electronic communications” they received that violated the employer’s policy. Such requirements that employees “report” inappropriate communications are viewed by the NLRB as attempts to spy on union activity. Also, Solomon concluded, employees would reasonably understand the rule to restrain their exercise of a right “to communicate with their fellow employees and third parties, such as a union, regarding terms and conditions of employment.”
But Solomon said the employer’s rule that required employees to secure company approval for any statements made in the employer’s name “or in a manner that could reasonably be attributed” to the employer was lawful.
And in DISH Network, No. 16-CA-66142, Solomon found that the employer violated Section 8(a)(1) by promulgating a rule that prohibited “disparaging or defamatory” comments, as well as a policy that prohibited employees from speaking to press or media representatives without prior authorization. Employees have a “protected right to seek help from third parties regarding their working conditions,” Solomon stated, including “going to the press, blogging, speaking at a union rally, etc.” He concluded that the prior authorization rule violated this right. Although “an employer has a legitimate need to control the release of certain information regarding its business, this rule goes too far,” Solomon wrote. Because the NLRA, “protects employee communications to the public that are part of and related to an ongoing labor dispute,” an employer policy such as this one that generally bars or limits employee access to the media “is therefore unlawfully overbroad.”
General Counsel Repeatedly Finds “Disclaimers” Inadequate
Several of the policies discussed contained disclaimers stating that they were not intended to interfere with employees’ Section 7 or NLRA rights or were not intended to limit communications protected by the NLRA. Solomon repeatedly found that such disclaimers did not salvage policies that otherwise could be read to bar or limit communications about employees’ wages and working conditions. He reasoned that employees would not know their rights under the NLRA sufficiently to understand what was and was not prohibited, and would still be limited in their exercise of NLRA-protected communications despite the disclaimers.
Wal-Mart Policy Found Lawful
In sharp contrast, Solomon concluded that Wal-Mart’s two-page social media policy is lawful. He concluded that the Wal-Mart policy gives employees clear notice of prohibited behavior “without burdening protected communications about terms and conditions of employment.”
Wal-Mart’s two-page social media policy, which states that it was updated May 4, 2012, applies to all “associates” of Wal-Mart Stores Inc. and subsidiaries in the United States. The policy initially references employees’ obligation to be responsible when posting on social media. Employees are urged to “be fair and courteous” to fellow employees and others and are told they “are more likely” to resolve work-related complaints by speaking directly to co-workers or using a Wal-Mart open-door policy “than by posting complaints to a social media outlet.”
The policy forbids “inappropriate postings” including “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct.” It also prohibits communications that “reasonably could be viewed as malicious, obscene, threatening, or intimidating” as well as those that “disparage” individuals, including employees, “or that might constitute harassment or bullying.” And it prohibits disclosure of trade secrets and confidential information, as defined in the policy. Violations of the policy may result in discipline or discharge, the policy warns.
Clear Examples Are the Key
In what should serve as strong guidance for other employers, Solomon concluded that Wal-Mart’s policy was lawful and not ambiguous because “it provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit” protected communications about working conditions.
For example, the company’s prohibition of “inappropriate” postings was not overbroad because the company further defined inappropriate postings to mean “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct.” “We found this rule lawful since it prohibits plainly egregious conduct, such as discrimination and threats of violence, and there is no evidence that the Employer has used the rule to discipline Section 7 activity,” Solomon wrote. Similarly, Solomon suggested that Wal-Mart’s request that employees be “fair and courteous” in their social media postings “could be overly broad,” but he concluded that the company provided “sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit” conduct protected by the NLRA. More specifically, the policy said it prohibited “malicious, obscene, threatening or intimidating” conduct, explained the prohibition on “bullying,” and cited discrimination on the basis of race, sex, disability, religion “or any other status protected by law or company policy” in prohibiting employees from engaging in conduct that would contribute to a hostile working environment for others. “The Employer has a legitimate basis to prohibit such workplace communications, and has done so without burdening protected communications about terms and conditions of employment,” Solomon stated.
Finally, even though Solomon repeatedly concluded that general prohibitions on posting “confidential information” are overbroad and unlawful, he again found that specific examples saved Wal-Mart’s prohibition against disclosing the company’s confidential information and trade secrets, “Employees have no protected right to disclose trade secrets.” He concluded Wal-Mart’s rule “provides sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.”
Having concluded that Wal-Mart’s social media policy was lawful in its entirety, Solomon attached the policy to his report as an example.
What This Means
The acting general counsel’s third social media report in less than a year demonstrates that social media policies will continue to be challenged and scrutinized, and shows that the devil is in the details. Therefore, employers must take the time to specifically define prohibited communications so that their policies do not limit employees from discussing their terms and conditions of employment.