As previously detailed in The Working World, Issues 101 and 15,2 the US National Labor Relations Board (the NLRB) is not afraid to challenge employers’ decisions to discipline employees for their use of social media sites. On May 30, 2012, the NLRB issued a third report further clarifying its position in the everevolving legal arena of employer restrictions on social media usage.3
Section 7 of the National Labor Relations Act (the NLRA) guarantees an employee the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”4 Section 8(a)(3) of the NLRA prohibits employers from discouraging “labor organization,” which is defined as “any organization of any kind … in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”5 The NLRB has stated that any social media policy that “would reasonably tend to chill” the exercise of employees’ Section 7 rights will be deemed unlawful.
The third NLRB report further refines a developing standard for social media policies: employer social media rules that include examples of clearly illegal or unprotected conduct, that would not reasonably be construed to include protected activity, are not unlawful. By contrast, social media rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context to clarify that the rule does not restrict Section 7 rights, are unlawful. As noted in our earlier discussion of this topic and as highlighted in this report, the inclusion of a savings provision in a social media policy will not by itself cure existing ambiguities in the policy. In one example, the NLRB noted that an automobile manufacturer’s social media policy that prohibited “offensive, demeaning, abusive or inappropriate remarks” was unlawful, as employees could interpret the policy as a limitation on protected criticisms of the employer’s labor policies or treatment of employees.
In addition, the NLRB expanded its guidance by providing certain precise rules for social media policies. Specifically, any policy that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activity is in violation of the NLRA. However, a rule requiring an employee to receive prior authorization before posting a message either in the employer’s name or that could reasonably be attributed to the employer is not a restriction on Section 7 rights. The new guidance also states that a policy cannot restrict an employee’s non-commercial use of an employer’s logos and trademarks in social media while engaging in Section 7 activity (e.g., the posting of images of employees on a picket line).
Finally, the recent NLRB guidelines include certain recommendations for drafting social media policies. For example, in the absence of explicit clarifying language, frequently used language (including terms such as “confidential or proprietary” and “material non-public information”) will always be deemed vague and overbroad. Notwithstanding the foregoing, the guidelines permit policies that require employees to include certain disclaimers. For example, a rule requiring all employee social media postings to identify the post as the employee’s own and plainly state that the post does not represent the employer’s positions, strategies or opinion is permissible.
As always, we encourage employers to review their existing social media policies in light of the recent NLRB guidance. For information specific to UK employers, please refer to Kathryn Ramsden’s review of UK social media considerations in this Issue 16.