As you have probably noticed, the interaction between social media and federal labor law has been one of this blog's favorite topics, which we have addressed on multiple occasions. On August 18, 2011, the National Labor Relations Board's Acting General Counsel ("AGC") issued a report that summarizes the General Counsel's Office's view on a variety of cases in which Regional Directors sought advice on social media issues and therefore provides excellent guidance to employers. With one exception, the topics addressed in the Report fall into two broad categories:
- First, the Report addresses when an employee's social media activity is protected concerted activity under the National Labor Relations Act ("NLRA"), which may not be restricted by the employer.
- Second, the Report addresses the extent to which employers' social media policies in general are so overly broad that they could be reasonably construed to prohibit employee rights to engage in concerted activity. The one exception addressed the question of union coercion of employees of a non-union employer. In that case, the union attempted to coerce the employees by making them believe that they were in danger of being deported for immigration violations. The union videotaped these interrogations and then posted edited versions on Youtube and Facebook. The AGC concluded that the threats and videotaping themselves violated the employees rights to refrain from union activity and that the postings on Youtube and Facebook unlawfully conveyed the same coercive message to any employees who may have viewed them.
The remainder of the AGC's Report addressed the more common issues that we have been discussing in recent months. With respect to the discipline line of cases, the AGC's Report seems to confirm that employee social media posts that are related to terms and conditions of employment and that can be reasonably be interpreted as acting with or on behalf of other employees will be protected, regardless of any otherwise offensive content. Those posts that lack a sufficient connection to work conditions and/or are more personal gripes than common employee issues likely will find no protection under the NLRA.
The AGC Report also extensively discusses the permissible scope of employer social media policies. Read literally, the Report would gut most employer policies as it found general prohibitions against the following provisions to be overbroad:
- Any communication or post that constitutes embarrassment, harassment or defamation of the employer or any employee, officer, board member, representative, or staff member;
- Any statements that lack truthfulness or that might damage the reputation or goodwill of the employer, its staff, or employees;
- Talk about company business, anything that the employee would not want their manager or supervisor to see or that would put their job in jeopardy,
- Disclosing inappropriate or sensitive information about the employer;
- Posting pictures or comments involving the company or its employees that could be construed as inappropriate;
- Use of the company name, address, or other information on social media site personal profiles;
- Revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent; and
- Using the employer's logos and photographs of the employer's store, brand, or product, without written authorization.
Despite its conclusions, the AGC Report does suggest that narrower prohibitions that provide definition to or examples of prohibited conduct that disclaim any intent to limit an employee's right to engage in concerted activity would be lawful.