Employer’s Social Media Ban on Photographs, Video Is Unlawful, According to NLRB

The National Labor Relations Board (NLRB) continues its scrutiny of social media policies. In a March 2012 Office of General Counsel Advice Memorandum, recently released in response to a Freedom of Information Act request, the General Counsel (GC) concludes that portions of Giant Food LLC’s social media policy, including its ban on photographing or video recording the company’s premises, violates the National Labor Relations Act (NLRA). Together with three reports issued by the GC in 2011 and 2012 on social media cases, this memo provides some guidelines on policies that the NLRB may deem as chilling employees’ rights to engage in protected, concerted activity.

According to the memo, “the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures and videos, such as of employees engaged in picketing or other concerted activities.”

A growing number of NLRB rulings have addressed workplace photography, though guidance on this developing issue remains somewhat sparse and limited to narrow factual situations. In a 2011 decision, the NLRB held that Flagstaff Medical Center’s ban on the use of cameras for photographing patients or the hospital premises did not violate the right of employees to engage in protected concerted activity. In contrast, in NLRB v. White Oak Manor, the U.S. Court of Appeals for the Fourth Circuit in 2011 upheld the NLRB’s determination that photographing other employees to gather evidence of uneven enforcement of an employer’s dress code policy was protected concerted activity.

In the memo, the GC also criticized the policy’s prohibition against the disclosure of “confidential” or “non-public” information as “so vague” that “without limiting language,” employees could perceive it as prohibiting protected, concerted activity, such as discussions about the terms and conditions of their employment.

Further, the GC concluded that employees could reasonably perceive the policy’s ban on the use of the Giant Food logo, trademarks, or graphics to prohibit them from using that information in their online protected communications, such as electronic leaflets, cartoons, or photos of picket signs. The GC found that even if Giant Foods had a proprietary interest in its trademarks, that interest is not “remotely implicated” by employees’ noncommercial use of those trademarks.

The GC, however, did find lawful the policy’s provisions requiring that employees “not defame” or “otherwise discredit” the company’s products or services and asking employees to “[s]peak up” if they believed anyone was violating the policy.

The GC further maintained that a general “savings clause”—promising that the policy will not be applied to protected, concerted activity under the NLRA—will not cure otherwise unlawful provisions.

Finally, noting that social media policies are a mandatory subject of bargaining, the GC applied its clear and unmistakable waiver precedent (the Provena factors) to determine that two out of three bargaining units had not waived their rights to bargain over the policy. Since the third bargaining unit failed to request bargaining, even though it had adequate notice of the policy, the employer’s implementation was found to be lawful.

With the proliferation of smartphones in the workplace, photography bans and other similar social media policies will continue to catch the eye of the NLRB. The Board will be challenged to apply its evolving rules to a variety of employment settings and clarify the line between permissible and impermissible activities.