[author: Doug Hass]
As we have recently detailed at employer conferences and in conjunction with the American Bar Association, the National Labor Relations Board’s (NLRB) Acting General Counsel Lafe Solomon issued his third guidance memorandum regarding the interplay between Section 7 protected concerted activity, social media in the workplace, and related employer policies. The first guidance on August 18, 2011, focused primarily on social media-related adverse employment decisions. The second memorandum on January 24, 2012, also addressed adverse employment actions, but contained a more detailed analysis of employer workplace policies. This third guidance attempted to give employers additional insight into the Board’s view of social media policies, but ended up muddying the issue even further.
The Third Memorandum on Social Media
Unlike the earlier summaries, Solomon focused his third social media memorandum solely on social media policies that the Board’s Division of Advice has considered in recent months. The memorandum offers examples of policies that the NLRB found permissible and others that the NLRB found violated the National Labor Relations Act (NLRA). Like the earlier memoranda, this third memorandum does not reveal the names of the parties due to privacy concerns. Although the memorandum reflects the Office of the General Counsel’s current view of social media policies, the memorandum is not binding, does not constitute precedent of any sort, and largely has not been reconciled by the Board itself or by the federal courts.
This third Operations Management Memo explains the Acting General Counsel’s reasoning behind seven social media policy findings. Solomon’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 Solomon believes “is lawful under the Act.” The General Counsel’s office found that several of the policies led to unlawful action against employees, though his office recommended upholding one employee discharge because that employee’s comments were not work-related.
Unfortunately, the General Counsel’s third memorandum is even less clear than the first two. Several of the cases unhelpfully depart from the majority of opinions issued by the Division of Advice or ALJs that found no violation of the Act when interpreting substantially the same policies. The memorandum itself is internally inconsistent and contradictory. For example, the General Counsel found that a policy warning that employees should “treat everyone with respect” and that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” was unlawful. Yet, the example “lawful” policy prohibits posts that include “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct.” Reading between the lines of the memorandum, the only difference appears to have been completely outside the policies themselves: the first employer had disciplined employees for Section 7-protected conduct, while the second employer (apparently) had not.
Elsewhere, the memorandum finds unlawful a provision that, in part, required employees to “receive prior authorization from the Corporate Communications Department to correspond with members of the media or press” and provided exactly the kinds of “examples of clearly illegal or unprotected conduct” that the memorandum said would be held “not unlawful.” However, the “lawful” policy included a simple, broad provision that “[a]ssociates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department.”
In an even more egregious example, the General Counsel found that a requirement that employees “be honest and accurate” is lawful, but that requiring employees to be “completely accurate and not misleading” is unlawful. The memorandum confusingly labels a policy that prohibits employees from sharing “Secret, Confidential or Attorney-Client Privileged Information” as lawful, but finds various restrictions on sharing “confidential or proprietary” or “non-public information” violate the NLRA. In other words, employers looking to the memorandum for clear guidance when drafting policies will be frustrated once again. The General Counsel’s latest memorandum seriously complicates employers’ ability to implement a coherent social media or electronic communications policy that would not potentially run afoul of the General Counsel’s interpretation of the Act.