The National Labor Relations Board recently released an advice memorandum addressing the lawfulness of an employer's social media policy. In the memorandum, the NLRB found that a prohibition on posting "confidential" or "non-public" information violated the National Labor Relations Act, because employees could reasonably believe that they were prohibited from sharing the terms and conditions of their employment. The NLRB also found that the policy was unlawful where it prohibited employees from using the employer's logo, trademarks or graphics. Although the NLRB recognized the employer's proprietary interest in its logo, it found that the employer's interest would not be infringed by non-commercial use of the logo by employees engaging in protected activities under the Act, including posting "electronic leaflets, cartoons, or even photos of picket signs containing the Employer's logo." Finally, the portion of the policy prohibiting employees from taking pictures or recording the workplace was unlawful, as it would infringe on employees' rights to share information regarding protected activity such as picketing through photos or videos. Although the employer's policy had a general savings clause, stating that it would not be interpreted to interfere with the rights of employees under the Act, the NLRB found that this was not enough to make the policy lawful.
TIP: This memorandum is a reminder of the NLRB's ongoing concern with social media policies.