NLRB Finds Employers’ Social Media Policies Illegal

The National Labor Relations Board (“NLRB”) recently published guidance showing how six of the seven company social media policies it reviewed offended the National Labor Relations Act (“NLRA”). Recall that even non-unionized companies are subject to the NLRA’s requirement that employees be able to engage in “concerted activity” protesting employer’s policies or practices.  Thus, employers’ social media policies come under scrutiny by the NLRB and  courts if the companies’ policies or practices illegally restrict or prohibit “concerted activity” within unionized or non-unionized companies.

A copy of the American Bar Association’s summary of the NLRB’s guidance memorandum is in this post, below.  A copy of the full text of the NLRB’s guidance is available by clicking on: OM 12_59 Report of the Acting General Counsel Concerning Social Media Cases.  Please note that employers generally find the NLRB’s guidance overly critical of the social media policies it reviewed.  Time– and courts– will tell who is right.  Contact Muller Law if you have questions about this issue.

Summary of the NLRB’s Third MemorandumCourtesy of ABA Section on Labor and Employment

This third Operations Management Memo explains the Acting General Counsel’s reasoning behind seven social media policy findings. The Acting General Counsel’s office found that six of the seven social media policies were overbroad, though it decided one was lawful after the company revised it. The memorandum also attaches a complete policy that the Acting General Counsel Solomon believes “is lawful under the Act.”

Confidential Information. The memorandum addresses several different rules on using social media to communicate “confidential information.” One employer’s policy prohibited employees from online discussions regarding “confidential guest, team member or company information,” but the Division of Advice found the policy impermissibly vague and overbroad. Particularly since the policy also applied “in the Breakroom . . . at home or in public areas,” The Acting General Counsel’s office found these provisions unlawfully restricted employees’ Section 7 rights, and restricted the employer from enforcing a policy requiring employees to report misuse of confidential information.

Similarly, the Division of Advice found other social media policies restricting posting “confidential or proprietary” or “non-public information” information were overbroad and vague. In a third instance, the General Counsel’s office also found a social media policy overbroad because it required employees to ensure their posts were “completely accurate and not misleading.” According to the General Counsel, employees “would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment,” absent some limits or examples “that would exclude Section 7 activity.”

Privacy and Online Decorum. The memorandum also outlines several policies that employers had designed to maintain harmony online and in the workplace. For example, an employer’s policy exhorting employees to “Respect Privacy” and to “disclose personal information only to those authorized to receive it” was unlawfully broad because “employees would reasonably construe it to include information about employee wages and their working conditions.” Another policy instructed employees–impermissibly in the General Counsel’s view–that they should “[t]hink carefully about ‘friending’ co-workers,” and warning that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” According to the memorandum, even an instruction to report “any unusual or inappropriate internal social media activity” could be construed as encouraging employees to report to management the union activities of other employees.

An employer’s policy that warned employees not to “pick fights” and to avoid “controversial topics” online also failed the General Counsel’s test. According to Solomon, the purpose of the policy was to caution employees against online discussion regarding topics that could become heated or controversial. Since topics regarding working conditions or unions could potentially become heated and controversial, the policy could reasonably be construed as inhibiting Section 7 rights. Likewise, a provision requiring employees to “[g]et permission before reusing” intellectual property that belonged to others was unlawful because it could inhibit workers from “taking or posting photos” of picket lines or unsafe conditions.

Official Contacts with Third Parties. The third memorandum highlights policy provisions that attempted to shape or protect an employer’s public message or image. For example, an employer’s warning not to “comment on legal matters, including pending litigation or disputes” was unlawful. The General Counsel explains that an employee would construe the language as prohibiting the discussion of potential claims against the employer. Additionally, the General Counsel’s office found unlawful provisions that, for example, required employees to obtain written authorization from the company president before posting online “in the name of” the employer or that notified employees that the company had only authorized the communications department to discuss company information with the media. According to the General Counsel, “[e]mployees have a protected right to seek help from third parties regarding their working conditions,” including “going to the press” or contacting government agencies on behalf of the employer.

Permissible Provisions. The General Counsel attaches an entire Social Media Policy to the memorandum that his office had found lawful, after the employer had revised it. He explained that this policy “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.” The General Counsel also explains that the permissible policy, for example, prohibited “inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct.” His office found the rule lawful “since it prohibits plainly egregious conduct” and that the employer had not “used the rule to discipline Section 7 activity.”

The General Counsel also notes his view that employers could craft lawful policies by clarifying and restricting the policies’ scope and including “examples of clearly illegal or unprotected conduct.” Conversely, unlawful policies would rely on ambiguous or broad language that does not clarify its application to Section 7 activity or contain limiting language or context.