Employers know that the National Labor Relations Board may scrutinize their policies to determine if they violate the National Labor Relations Act (the “Act”) – and specifically, Section 7’s protections for “concerted activity.”

When searching for clear guidance on what standards to follow, employers soon find that the NLRB’s most recent fact sheet only addressed cases as recent as 2012 – leaving them to the unenviable task of navigating the myriad Administrative Law Judge Decisions (which are not legal binding precedent unless they have been adopted by the Board on review of exceptions), unpublished Board Decisions (also not binding precedent for anyone other than the parties at issue) and Board Decisions.  Three recent cases from the summer of 2014 demonstrate that the intersection of social media, employer policies and the Act, are still at the forefront of the NLRB’s agenda.  While these decisions do not provide clear standards, they offer valuable take-aways that employers should be aware of when drafting or reviewing their social media policies.

Encouraging Civility Is Not Unlawful

To be protected under Section 7 of the Act, employee conduct must be both “concerted” and engaged in for the purpose of “mutual aid or protection.”  Policies that restrict those activities can violate the Act.

In June 2014, an administrative law judge issued a decision finding that the employer’s social media policy did not violate the Act.  The primary policy language at issue was as follows: “While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees, which could lead to morale issues in the workplace or detrimentally affect the Company’s business.”

The judge examined whether employees would reasonably construe the language to prohibit Section 7 activity and concluded that the policy language was lawful.  Specifically, it was not the job-related subject matter of the postings that were of concern to the employer, rather it was the manner in which the subject matter was articulated and debated among the employees.  The judge found that the language at issue “urged [employees] to be civil with others in posting job-related material and discussions on social media sites” and that such language did not violate the Act.  The policy could be understood under common parlance to prohibit posting of personal (not personnel) information about social relationships and similar private matters, which could result in morale problems or which could also constitute “harassment” (to which the social media policy referred). The judge also found that the policy did not prohibit posting of “personnel” information or “payroll information” or “wage-related information,” which would be unlawful under the Act.

The take-away here for employers is to ensure that the purposes of the social media policy (and other policies generally) are clearly articulated to ensure that discussion of subject matter protected by the Act (i.e., wages, work environment, job issues, etc.) are not prohibited.

Avoid Overbroad Confidentiality Rules

On August 11, 2014, the Board issued a decision in which it found that an employee had engaged in concerted, protected activity when she enlisted the help of coworkers to report a claim of sexual harassment.

In a footnote to the decision, the Board found that employer’s handbook violated the Act because it contained an overbroad and discriminatory confidentiality clause.  However, the Board also found that the employer’s instruction “not to obtain additional statements from her coworkers in connection with that Complaint” did not, in itself, violate the Act.  Specifically, the employer had instructed the employee to let the Human Resources representative obtain additional statements.  The company did not prohibit the employee from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing subsequent complaints, or obtaining statements from coworkers in the future.  The Board acknowledged that employers have a “legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.”

The take-away here for employers is to ensure that company policies, whether related to social media or not, are not so restrictive as to be construed against employees exercising their Section 7 rights.

Savings Clause For Policy Doesn’t Save Policy

On August 22, 2014, the Board issued another decision where it determined that the employer unlawfully terminated an employee who “liked” a comment about their employer.  (Click here to read Seyfarth’s One Minute Memo on that decision).

The Board also examined whether the employer’s social media policy violated the Act by analyzing three questions, whether: “(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.”

The Board found that the employer’s prohibition against “inappropriate discussions about the company, management, and/or coworkers” on social media was “sufficiently imprecise” such that employees would reasonably understand it to encompass protected Section 7 activity.  The employer’s general savings clause that the policy “is of no force or effect” if “state or federal law precludes it” was not enough, especially because the employer had, in fact, terminated two employees whose Facebook discussion of tax withholding issues was concerted, protected activity.  The Board also found it instructive (and harmful to the employer) that the policy provided “no illustrative examples of what the [employer] consider[ed] to be ‘inappropriate.’”

The take-away here for employers is that social media policies (and other policies, generally) should provide fairly specific examples of prohibited conduct under their policies.  Savings clauses likely will no longer survive NLRB scrutiny and policies should be crafted to avoid being overly broad, but specific enough to accomplish the protections desired.

Conclusion

Employers should review their social media policies to ensure that the policies provide the most protection for the employer to enforce its anti-harassment, trade secret and other policies, but that the policies also do not unlawfully prohibit protected concerted activity.