On May 30, 2012, the NLRB's General Counsel's Office issued its third Memo addressing social media issues. This one is devoted entirely to its position on the lawfulness of various typical social media policy provisions. Hoping that this third General Counsel Memo would provide greater clarity on the Board's regulation of social media policies, I sat down and read it and, quite frankly, came to the conclusion that the Memo only adds to employers' confusion on what they can and cannot include in their social media policies -- even though the GC took the unusual step of appending to the Memo a social media policy that it considered entirely lawful.

Having spent a fair bit of time pondering the significance of this Memo, I have arrived at this conclusion: Though I am pleased to have a policy that the General Counsel's office has endorsed, the highly nuanced distinctions made between policies considered lawful and unlawful are baffling.

Here are a few examples:

Regarding defamation:

LAWFUL:

Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers people working on behalf of [Employer] or competitors.

UNLAWFUL

You may not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their products/services.

Regarding the protection of confidential information:

LAWFUL:

Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.

UNLAWFUL:

Employees are prohibited from posting information regarding [Employer] on any social networking sites … that could be deemed material non-public information or any information that is considered confidential or proprietary. Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans and schedules.

Regarding the use of internal complaint procedures:

LAWFUL:

Keep in mind that you are more likely to resolve work related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet.

UNLAWFUL:

You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet. [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums to resolve these types of concerns.

In assessing how this third Memo impacts their social media policies, employers should keep a few things in mind:

  1. The General Counsel's position on these social media policy provisions is not limited to their appearance in a social media policy. To the extent similar provisions are included elsewhere in employer work rules and policies, the General Counsel's position will be the same. Therefore, it not only is important to have your social media policies reviewed and updated, but all of your employee policies that touch on the issues addressed in this most recent Memo. Any work rule or policy that limits employee communication is likely to be viewed by the NLRB General Counsel with the same attitudes as those found in the social media advice memo.
  2. Although the General Counsel's endorsed policy may provide employers with a safe harbor that keeps challenges at bay, it may not address all issues that any particular employer may feel it needs to address about employee social media use based on the nature of its business or culture. Also, keep in mind that employee discipline in accordance with the policy will still be evaluated by the Board to determine if the employee conduct constituted protected activity under the NLRA. Using the hindsight approach that the General Counsel has used in discipline cases previously reported by the General Counsel's office, it is entirely possible that the General Counsel will take the position that its endorsed policy as applied is unlawful.
  3. The General Counsel's Memorandum is not law, but it does reflect how the Board's regional directors will attempt to enforce the law until we start seeing these issues decided through the Board's adjudication process and in the courts. It may be tempting for employers that feel a strong need to include certain policies that the Memo has found unlawful to test the Board's position, but this decision does not come without serious repercussions. Employers may think that the only risk is that the Board will find their policies unlawful and make them change the policy, but the significance of that risk is magnified when a non-union employer is facing an organizing campaign. Rest assured that any union attempting to organize a workplace will take a long look at the employer's policies and will file unfair labor practice charges regarding any policies it thinks the board will find unlawful. Because of the Board's enforcement posture, the short-term effect might be an order from the NLRB requiring the employer to rescind the policy and to tell employees it was found by the NLRB to be illegal. That could be a real boost for the union organizing effort because it can claim to the employees that the union forced the company to change its illegal rules.  An employer facing a union organizing campaign simply can't afford to give the union this free shot at showing the work force that the company is maintaining unlawful policies and the union's ability to get those policies changed. Worse, a union could attempt to get an employer win in an election overturned by claiming it was obtained as a result of the employers maintenance of unlawful policies that impacted the election results.
  4. To this point, I have been among those attorneys advocating the use of a savings clause or disclaimer noting that the policy is not intended to restrict employees rights to communicate with each other regarding terms and conditions of employment. In his third Memo, the General Counsel found each of the savings clauses he addressed to be insufficient to render otherwise unlawful provisions lawful or to cure ambiguities in the policy under consideration. Interestingly, the policy endorsed by the General Counsel's office does not include any savings clause. Therefore, employers should consider whether to include a savings clause in their social media policies or whether doing so unduly draws employee attention to their Section 7 rights without providing any parallel benefits.