The National Labor Relations Board (“NLRB”) continues to be active in its review of employer social media policies. In recent years, the NLRB’s review of social media policies has focused largely on whether an employee would reasonably construe the language of the policy as prohibiting him or her from engaging in activity protected by Section 7 of the National Labor Relations Act (“NLRA”), such as discussing terms and conditions of employment with fellow employees and engaging in strikes and other job actions.
In this case, Boch Imports, Inc. d/b/a Boch Honda, the NLRB Administrative Law Judge (“ALJ”) reviewed several provisions of an employer’s employee handbook. The employee handbook contained an extensive social media policy that included the following provisions:
1. The Company requires its employees to confine any and all social media commentaries to topics that do not disclose any personal or financial information of employees, customers or other persons, and do not disclose any confidential or proprietary information of the Company.
2. If an employee posts comments about the Company or related to the Company’s business or a policy issue, the employee must identify him/herself…
5. If an employee’s online blog, posting or other social media activities are inconsistent with, or would negatively impact the Company’s reputation or brand, the employee should not refer to the Company, or identify his/her connection to the Company…
7. While the Company respects employees’ privacy, conduct that has, or has the potential to have a negative effect on the Company might be subject to disciplinary action up to, and including, termination, even if the conduct occurs off the property or off the clock.
8. Employees may not post videos or photos which are recorded in the workplace, without the Company’s permission.
9. If an employee is ever asked to make a comment to the media, the employee should contact the Vice President of Operations before making a statement.
10. The Company may request that an employee temporarily confine its social media activities to topics unrelated to the Company or a particular issue if it believes this is necessary or advisable to ensure compliance with applicable laws or regulations or the policies in the Employee Handbook. The Company may also request that employees provide it access to any commentary they posted on social media sites.
11. Employees choosing to write or post should write and post respectfully regarding current, former or potential customers, business partners, employees, competitors, managers and the Company. Employees will be held responsible for and can be disciplined for what they post and write on any social media. However, nothing in this Policy is intended to interfere with employees’ rights under the National Labor Relations Act.
12. Managers and supervisors should think carefully before “friending,” “linking” or the like on any social media with any employees who report to them.
The ALJ found “It requires little discussion to find that a number of these provisions clearly violate the [NLRA] as employees would reasonably construe these provisions as preventing them from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions, or limiting the subjects that they could discuss.” [emphasis added.]
Many employers maintain social media policies similar to the one at issue in this case. This decision highlights that employers, regardless of whether their employees are represented by a union, must be mindful of the NLRA when crafting social media policies.