Beginning last year, the National Labor Relations Board issued a series of administrative decisions and advisory memoranda regarding the compatibility of employers' social media policies with Section 7 of the National Labor Relations Act. Section 7 protects "Concerted Activity" by both unionized and non-unionized employees. Concerted Activity means two or more employees discussing or complaining about terms and conditions of employment.
The NLRB has interpreted Section 7's protections to prohibit employer social media policies that seek to prevent or chill employees' use of Facebook or other platforms to discuss work and working conditions. The Board has repeatedly found such policies to violate the NLRA when they impose blanket prohibitions against criticism of the company or management, or where they contain broad definitions of protected confidential information.
Last month, the NLRB released another advisory memorandum further explaining its position on social media policies. This memo was responding to a Giant Food policy that (1) prohibits employee disclosure of confidential business information; (2) prohibits use of company trademarks or logos; and (3) prohibits employees from disparaging company products on line.
The NLRB said that the broad ban on disclosure of confidential information was illegal. The Giant Food policy defines this as any non-public information. While employers can prohibit disclosure of proprietary and confidential trade secrets and similar information, it cannot write the definition so broadly to prohibit employees from discussing terms and conditions of employment.
Similarly, Giant Food cannot prohibit employees from using the company logo on social media sites. While employers have a proprietary interest in maintaining these logos, their use by employees for Concerted Activity does not infringe on these rights. Finally, the NLRB said that the Section 7 does not protect disparaging company products or services. Employers can impose reasonable restrictions on such behavior online or otherwise.
Employers are especially sensitive about online employee activity due to its public nature, and the potential for harm to their reputation or brand. However, the NLRB continues to take an expansive reading of Section 7 and its use in the social media context. Social medial policies should be prepared and periodically reviewed with these restrictions in mind. At a minimum, the policies should clearly state that they are not intended and will not be interpreted to infringe on employees' Section 7 rights.