The National Labor Relations Board has taken a lead role in defining the boundaries of appropriate social media policies. In August 2011, and again in January 2012, the Board’s Office of General Counsel issued reports analyzing NLRB cases arising in the context of employer policies governing employee use of social media. These reports send the message to employers (union and non-union alike) that the Board will not hesitate to find unlawful those policies that infringe upon employees’ rights to engage in protected concerted activity regarding wages, terms and conditions of employment, as guaranteed by Section 7 of the National Labor Relations Act. An employer’s policy can run afoul of the Act if it either explicitly restricts protected concerted activity, or if an employee would reasonably construe the policy as prohibiting protected concerted activity.
The prevailing theme in the first two reports has been that many employer social media policies are over broad because they fail to contain limiting language that explicitly permits employees to engage in protected activity. On May 30, 2012, the Board issued a third report containing six new case examples of policies found to be unlawful, and one policy found lawful, which the Board suggests will provide employers with “guidance” on how to craft appropriate and lawful social media policies. The Board’s advice to employers: work rules must not be ambiguous as to their application to Section 7 protected activity, and policies should contain limiting language or adequate context to clarify to employees that the policy does not restrict Section 7 rights. When possible, policies should be clarified as to their limited scope by including examples of clearly illegal conduct or unprotected conduct such that they could not reasonably be construed as applying to Section 7 activity. Although the Board’s guidance appears like common sense, a review of the results in the case examples suggests that the Board’s standard is overly strict. As yet, no court has approved the Board’s interpretations. Nevertheless, employers should review their social media policies and, if necessary, update them with language that explicitly informs employees that their Section 7 rights are not restricted.