On May 30, 2012, the Acting General Counsel of the National Labor Relations Board (“NLRB”) issued a report to provide guidance about employer social media policies (e.g., policies that outline appropriate or inappropriate online employee conduct). The NLRB is concerned that social media policies prevent employees from engaging in “concerted activity” protected by Section 7 of the National Labor Relations Act. Section 7 allows employees (both union and non-union) to discuss wages, employer labor policies, and workplace conditions with co-workers and non-employees.
According to the NLRB, a social media policy violates the Act when it explicitly restricts Section 7 activities or when: (1) employees could reasonably construe a policy’s language to prohibit Section 7 activity, (2) the policy was promulgated in response to union activity, or (3) the policy has been applied by the employer to restrict employee Section 7 rights. The NLRB report focuses mainly on those policies which employees may reasonably construe to prohibit Section 7 activity.
In many respects, the NLRB’s positions are quite surprising. According to the NLRB, the vast majority of the arguably benign policies it examined violated the Act. Some examples of policies the NLRB determined violated the Act include:
Don’t comment on any legal matters, including pending litigation or disputes.
The NLRB found this policy specifically restricts employees from discussing the “protected subject of potential claims against the employer.”
... you must also be sure your posts are completely accurate and not misleading ...
The NLRB found this policy to be overly broad, and capable of being interpreted to apply to employee’s criticism of his or her employer, a Section 7 protected right unless the employee’s statements are “maliciously false.”
Make sure that any photos, music, video or other content you are sharing is legally sharable or that you have the owner’s permission …
The NLRB determined that, without further explanation by the employer, employees may reasonably interpret this provision to proscribe the use of photos of employees engaging in Section 7 activities, including picket signs displaying an employer’s logo.
Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline …
The NLRB believes this policy covers an overly-broad spectrum of communications, including Section 7 protected criticism of the employer’s labor policies or employee treatment.
… consider using available internal resources, rather than social media or other online forums, to resolve [workplace] concerns.
While employers have the right to “suggest” the use of internal procedures to resolve workplace concerns, the NLRB found that the second portion of this provision would have the probable effect of prohibiting employees from the “protected activity of seeking redress through alternative forums.”
Employees are prohibited from posting information regarding [Employer] on any social networking sites … that could be deemed material non-public information or any information that is considered confidential or proprietary.
In the absence of further clarification, the NLRB determined employees could reasonably construe this policy to include information related to the terms and conditions of their employment.
Employees should avoid harming the image and integrity of the company …
The NLRB found this policy to be overbroad because it could reasonably be construed to prohibit protected criticism of the employer’s labor policies or treatment of employees.
The report also reaffirms the NLRB’s position that the inclusion of a “savings clause” such as, “This Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act),” will not cure an otherwise violative employer policy.
So what are employers allowed to do? Employer social media policies must not be overly broad and should include specific examples of prohibited disclosures. We strongly encourage employers to review their existing social media policies to ensure no provision therein could be reasonably interpreted to restrict its employees’ Section 7 rights.