Why it matters: According to a newly released Advice Memorandum from the National Labor Relations Board’s Office of the General Counsel, employers may require their employees to post disclaimers on social media to state their views are their own and not those of their employer. The issue arose in a case involving a challenge to several provisions of an employer’s social media policy, including the requirement that an employee post, “The views expressed on this website/blog are mine alone and do not necessarily reflect the views of my employer.” In a memo prepared in 2012 but just released in September, a member of the Division of Advice recognized that the employer had a legitimate interest in protecting itself from unauthorized postings and found that the disclosure requirement was not unlawful.
U.S. Security Associates provides security services nationwide, employing more than 46,000 workers in 45 states. In October 2010, the company issued a revised employee handbook known as the Security Officer’s Guide, which a New England chapter of the Service Employees Union challenged in the fall of 2011.
The Union argued that several provisions of the Guide violated Section 8(a)(1) of the National Labor Relations Act (NLRA), including a prohibition on “insignia, emblems, buttons, or items other than those issued or authorized” by U.S. Security Associates, a requirement to act “respectfully” to other employees and clients, a confidentiality policy, a chain-of-command rule outlining the process for problem resolution, and the company’s policy on personal blogging and social networking.
Rule 4.21 stated that while U.S. Security Associates “respects the right of employees to use personal websites, social networking websites, multi-media sites, wikis, texting sites, and blogs” during nonworking times, the company wanted to make clear that such activity is an employee’s personal expression.
The policy “has been developed for employees who maintain personal blogs, access social networking web sites or wikis, or engage in texting that contain[s] any references or postings about [U.S. Security’s] business, products, services, or employees,” according to the Guide. “Any [U.S. Security] employee engaged in communication on or through the above-mentioned means is personally responsible for his or her posts and should understand that what is posted is track-able, traceable and permanent.”
Employees who identify themselves as U.S. Security workers or discuss matters related to the business “may create an impression of speaking on behalf of [U.S. Security],” the company wrote, and must follow the company policy. “Failure to adhere to this policy may result in legal action or discipline up to and including termination of employment,” the Guide warned.
“Employees must make clear that the views expressed by them are their own and do not necessarily represent the views of [U.S. Security]. If you identify yourself anywhere on a web site, blog, or text as an employee of [U.S. Security], make it clear to your readers that the views you express are yours alone and that they do not necessarily reflect the views of the company. To reduce such possible confusion, we require that you put the following notice in a reasonably prominent place on your site: ‘The views expressed on this web site/blog are mine alone and do not necessarily reflect the views of my employer, U.S. Security Associates, Inc.’”
The policy also prohibited the disclosure of “sensitive, proprietary, confidential, or financial information” about the company, its customers, clients, parents, subsidiaries, or affiliates, and required that employees obtain advance written permission from the company before linking to the company website. Employees were also instructed by the Guide to obey the law, express themselves in a “respectful manner,” and refrain from posting anything “obscene, defamatory, profane, discriminatory, libelous, threatening, harassing, abusive, hateful, [or] embarrassing to another person or entity.”
Despite the Union’s challenge, Associate General Counsel Barry J. Kearney found the disclaimer requirement was lawful.
“[T]he employer has a legitimate interest in protecting itself against unauthorized postings purportedly on its behalf and the requirement would not unduly burden employees in the exercise of their Section 7 right to discuss working conditions,” he wrote in the memorandum. “Although one could argue that the disclaimer requirement would be unduly burdensome if it was applicable to text messages, in light of their brevity, the employer’s rule requires the disclaimer only on a ‘site,’ where posting the disclaimer would not be a burden.”
Kearney said the prohibition on disclosing “confidential” and “sensitive” information was unlawfully overbroad, however, because employees could reasonably construe the language to include personnel records, which could interfere with employee discussions about their terms and conditions of employment. The requirement to obtain written approval before linking or referring to U.S. Security’s website also violated the NLRA.
“First, employees will be hindered in exercising their Section 7 rights if, when discussing their work-related concerns and complaints on social media, they cannot refer third parties to the employer’s website to support, and garner support for, their position,” Kearney wrote. “Furthermore, any work rule that requires employees to secure permission from their employer prior to engaging in Section 7 activities is unlawful.”
The section on obeying the law received mixed results. While mandating that employees express themselves in a “respectful manner” did not arouse the NLRB’s concern, the prohibition on posting “embarrassing” material on social media was unlawful. “Employees would reasonably construe this rule to bar them from discussing work-related complaints, particularly those involving their managers,” according to the memo.
To read the Advice Memorandum, click here.