The Acting General Counsel for the National Labor Relations Board (NLRB) recently issued a Report Concerning Social Media Cases. The report, Memorandum OM 12-59 (available online at http:// mynlrb.nlrb.gov/link/document.aspx/09031d4580a375cd), discusses a variety of lawful -- and unlawful -- employer social media policies. It provides guidance for employers on the extent to which employers may limit or restrict employee use of social media.
The report is, effectively, a series of case studies that looks at the specific language of actual employer social media policies. Seven different employer policies are reviewed, most of which are deemed to violate Section 7 of the National Labor Relations Act (NLRA). The report discusses why the NLRB considers these policies unlawful, and also presents one employer’s revised policy, which passes NLRB muster.
The NLRA applies to businesses both large and small, regardless of whether the employer is currently unionized, so businesses of all sizes should pay attention to this report. Under Section 7 of the NLRA, employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8 of the NLRA makes it an unlawful practice for employers “to interfere with, restrain, or coerce employees” in the exercise of the employees’ Section 7 rights.
In plain English, this means that employees covered by the NLRA are afforded certain rights to join together to change their wages or working conditions, with or without a union. The law protects the rights of employees to engage in “concerted activity,” which is when employees take action for their mutual aid or protection regarding the terms and conditions of their employment.
What’s In the Report
The General Counsel’s report, of course, provides the NLRB’s interpretation of how the NLRA applies to employer social media policies. It is merely guidance -- it does not constitute law, and it is does not carry the weight of a court decision, or even of a formal NLRB decision on a case. That said, it is nonetheless a helpful tool in developing social media policies that do not run afoul of the NLRA. It also provides some interesting insight into the NLRB’s approach to these issues, and how the NLRB is likely to rule in cases involving employer social media policies.
1. Online Communications Must Be “Completely Accurate” and Not Reveal Any Non-Public Information
- The employer’s policy: “If you engage in discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also make sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site. Non-public information includes: Any topic related to the financial performance of the company; […] Information that has not already been disclosed by authorized persons in a public forum; and Personal information about another [Employer] employee, such as his or her medical condition, performance, compensation or status in the company.”
- The problem: This policy was viewed as problematic by the NLRB for several reasons. First, the phrase “completely accurate and not misleading” was considered overbroad, because it could reasonably be interpreted to apply to criticism of, or discussions about, the employer’s labor policies or employee working conditions. Second, the NLRB concluded that the policy’s definition of “non-public information” specifically included “topics related to Section 7 activities.” Thus, employees could reasonably believe the policy precluded them from discussing the terms and conditions of their employment among themselves or with nonemployees.
2. Friending Co-Workers
- The employer’s policy: “Think carefully about ‘friending’ co-workers . . . on external social media sites….”
- The problem: According to the NLRB, this language could discourage communication between co-workers – including communication regarding workers’ conditions of employment, which is protected activity under the NLRA.
3. Suggesting that Employees Use a “Friendly Tone” in Online Discussions
- The employer’s policy: “Don’t pick fights. Social media is about conversations. When engaging with others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversation. Remember to communicate in a professional tone.”
- The problem: According to the NLRB, discussions about working conditions or unions “have the potential to become heated and controversial and employees could reasonably construe [this] rule as prohibiting robust discussions on protected topics.”
4. Commenting on Legal Matter
- The employer’s policy: “Don’t comment on any legal matters, including pending litigation or disputes.”
- The problem: Under the NLRA, it is protected activity for employees to discuss potential claims they may have regarding the conditions of their employment.
5. Resolving Concerns Internally
- The employer’s policy: “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 … to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.”
- The problem: The NLRB concluded that this policy could be interpreted to preclude or inhibit employees from seeking redress outside of the company, which is protected activity under the Act.
6. Harming the Image & Integrity of the Company
- The employer’s policy: “Employees should avoid harming the image and integrity of the company.”
- The problem: The NLRB found that this policy was overbroad, because it could reasonably be construed as prohibiting criticism of the employer’s labor policies or treatment of employees – all of which constitutes protected worker activity under Section 7 of the NLRA.
7. Making Disparaging Remarks About an Employer
- The employer’s policy: “You may not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services.”
- The problem: According to the NLRB, employees could interpret this prohibition to apply to protected criticism of the Employer’s labor policies or treatment of employees.
8. Speaking to the Media
- The employer’s policy: “Unless you receive prior authorization from the Corporate Communications Department to correspond with members of the media or press regarding [Employer] or its business activities, you must direct inquiries to the Corporate Communications Department. Similarly, you have the obligation to obtain the written authorization of the Corporate Communications Department before engaging in public communications regarding [Employer] of its business activities.”
- The problem: The NLRB recognized that employers have a legitimate need to control the release of certain business information, but determined that this particular policy “goes too far.” Under the NLRA, employees have the right to seek help from third parties regarding their working conditions. According to the NLRB, this may include going to the press, blogging, or speaking at a union rally. Because Section 7 protects employee communications to the public that are related to ongoing labor disputes, policies that prohibit employee communications to the media, or that require prior authorization for those communications, are overbroad and a violation of the NLRA.
9. Employee Opinions About the Workplace
- The employer’s policy: “Employees are permitted to express personal opinions regarding the workplace, work satisfaction or dissatisfaction, wages hours or work conditions with other [Employer] employees through Personal Electronic Communications, provided that access to such discussions is restricted to other [Employer] employee sand not generally accessible to the public.”
- The problem: The NLRB believed that this policy unlawfully limited employees’ ability to discuss and share terms and conditions of employment with non-employees. This violated Section 7 of the NLRA because the NLRB “has long recognized that Section 7 protects employee communications to the public that are part of and related to an ongoing labor dispute.”
10. “Savings Clause” is Insufficient
- The employer’s policy: “This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.”
- The problem: This kind of language is often called a “savings clause.” The idea is that by including this language, an employer can “save” a policy from being unlawful because the clause acts as a disclaimer stating that the employer will not violate the law. The NLRB, however, found this particular disclaimer insufficient, explaining that, “this clause does not cure the otherwise unlawful provisions of the Employer’s social media policy because employees would not understand from this disclaimer that protected activities are in fact permitted.”
Put simply, this report warns employers that they are walking a very fine line if their policies prohibit or limit workers from complaining about their working conditions online. This stance should come as no surprise to those who have been following the NLRB’s heavily pro-employee actions in recent years.
From a practical perspective, it is worth nothing that in nearly all of the policies deemed unlawful by the report, the culprit was overbroad language. In most cases, the policy in question could fairly easily have been reworded to avoid the Section 7 problems highlighted by the NLRB’s General Counsel. The lesson is to tailor your social media policy so that it precisely describes what is, and is not, permitted. Make sure that the wording is not so broad that it could be interpreted as limiting employee rights to discuss working conditions, engage in union- organizing campaigns, or otherwise restricting employees’ Section 7 rights. General restrictions on online behavior and disclosure of confidential company information can still be implemented, as long as the policy contains explicit exemptions for the worker organizing and union activities protected by Section 7 of the NLRA.
In some cases, including examples of permitted and prohibited conduct as part of the policy can be a helpful way to ensure clarity. Use caution, however, when using examples, and always check with counsel before implementing new policies or changing the wording of policies. Should your policy ever be challenged by an employee, just a few words can make all the difference.
For many employers, the safest path may be to mimic the language of the revised policy provided at the end of the General Counsel’s memorandum. For the time being, that policy language can fairly be considered a “safe harbor” policy for employers. Keep in mind, though, that this safe harbor policy may not be sufficient or appropriate for all employers in all situations.
In today’s workplace, social media policies are a must-have for employers of all sizes. Now is a good time for employers to review their social media policies and update any policies and employee handbooks as needed, to ensure they don’t run afoul of labor laws. Employers are also advised to seek the advice of employment counsel whenever making changes to employment policies – social media or otherwise – to ensure compliance with the complex maze of federal and state labor and employment laws.