On May 30, 2012, the National Labor Relations Board's Office of General Counsel issued its third guidance memorandum on social media and the workplace, this time specifically focusing on employer policy language. By way of background, an employer's social media policy may violate Section 8(a)(1) of the National Labor Relations Act ("NLRA") if it would reasonably tend to chill an employee's exercise of Section 7 rights. This concept applies to even nonunionized workforces. Employers may glean the following key points from the latest memorandum:
- Any provision that may reasonably be understood by an employee to prohibit protected activity, such that the activity would be chilled, will run afoul of the NLRA. The General Counsel has applied this concept broadly to find unlawful provisions that, without further explanation, prohibit the release of "confidential information" or “non-public company information," require employees to obtain employer permission before posting or communicating with the media, prohibit “disparaging" or “defamatory" comments or “offensive, demeaning, abusive or inappropriate remarks," instruct employees to “think carefully" before "'friending' co-workers," or require employees to report "unusual or inappropriate internal social media activity."
- Using specific examples to better define provisions that could be ambiguous or interpreted too broadly may reign in otherwise overbroad provisions. Thus, in the sample policy (referenced below), a provision the required employees to be "respectful" and "fair and courteous" in posting to social media could have been overbroad. However, the provision went on to advise employees to avoid posts that could be viewed as "malicious, obscene, threatening or intimidating" and explained that prohibited postings would include "offensive posts meant to intentionally harm someone's reputation" or posts that could contribute to an unlawful hostile work environment. This further detail, according to the General Counsel, addressed legitimate employer concerns without burdening an employee's Section 7 rights.
- A savings clause providing that the social media policy will not be interpreted or enforced in a way that will interfere with concerted activity or other conduct protected by the NLRA is highly unlikely to save an otherwise problematic social media clause. The General Counsel has repeatedly reasoned that employees are not expected to know the scope of their rights or, where an activity is explicitly not allowed by the policy, to assume that the savings clause overrides the prohibition.
- The General Counsel provided an example of a lawful social media policy, reportedly from Wal-Mart, along with commentary on key aspects of the policy. Employers preparing a new policy or reviewing an established one should review this policy as part of their consideration process; however, they should do so with a critical eye. No one policy is the right fit for every organization. Further, aspects of the policy appear to be inconsistent with discussion earlier in the memorandum. Thus, the policy should not be adopted wholesale simply because the General Counsel has offered it up.
While potentially helpful guidance, the memorandum and opinions on which it reports are not binding NLRB precedent; rather, they comprise the Office of the General Counsel's position used for determining whether to prosecute an unfair labor charge. While these positions may reasonably be construed as unreasonable or otherwise subject to challenge, employers should nevertheless carefully consider this guidance when implementing a new or revised social media policy.