[authors: Katy Rand and Michelle Bush]
As workplace conversations have migrated from the water cooler to the internet, more and more employers have adopted social media policies, hoping to place some reasonable limits on what their employees say on-line. In a Report issued last week, the Acting General Counsel of the National Labor Relations Board (NLRB) further illuminated the Board’s position regarding when these policies will and will not run afoul of the National Labor Relations Act (NLRA). Many social media policies no doubt contain language that would now be considered unlawful by the NLRB’s General Counsel, so employers averse to risk should get ready, once again, to revise their policies.
The concern over social media policies is driven by Section 7 of the NLRA, under which employees—regardless of union membership—have a right to engage in protected, concerted, activity for their mutual aid and protection. The NLRB Report analyzes several different social media policies and comments on whether the provisions contained therein are unlawful because of their potentially chilling effect on employees’ Section 7 rights. Examples of policy language, followed by the Report’s judgment as to their lawfulness, follow:
“Don’t release confidential . . . company information”
Unlawful. According to the Report, prohibitions on posting “confidential,” “proprietary,” or “non-public” information are overbroad, and could reasonably be construed as prohibiting employees from discussing terms and conditions of employment.
“If you engage in a discussion related to [Employer] . . . you must be sure that your posts are completely accurate and not misleading.”
Unlawful. Because this provision could be interpreted to apply to discussions about or criticism of the employer’s labor policies or its treatment of employees, it is overbroad, says the Report.
“Don’t post photos, music, videos, quotes, or personal information of others without their permission.”
Unlawful. According to the Report, employees would reasonably interpret this provision to prohibit them from posting photographs and videos of employees picketing, for example.
“Don’t use the company’s logo or trademarks.”
Unlawful. Apparently, an employee’s non-commercial use of an employer’s logo or trademarks on a picket sign or in a rant about wages, hours and working conditions on Facebook, outweighs the employer’s proprietary interest in its trademarks.
“Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.”
Unlawful. Without any limiting language clarifying that this provision does not restrict Section 7 activity, this provision is overly broad and includes a range of communications that would include protected criticisms of the labor policies. Note, moreover, that the “limiting language” cannot appear in a general disclaimer or “savings clause” to the effect that “the policy will be administered in compliance with applicable laws and regulations.” According to the Report, disclaimers are insufficient to cure the ambiguities in the overly broad rules.
“Think carefully about ‘friending’ co-workers . . . on external social media sites. Communications with co-workers on such sites that would be inappropriate in the workplace are also inappropriate online and what you say in your personal social media channels could become a concern in the workplace.”
Unlawful. This provision would “discourage communications among co-workers,” the Report states, thereby necessarily interfering with Section 7 activity.
“Don’t comment on any legal matters, including pending litigation of disputes.”
Unlawful. Section 7 protects the rights of employees to discuss potential claims against their employer on the Internet.
“Adopt a friendly tone when engaging online. Don’t pick fights.”
Unlawful. According to the Report, employers cannot lawfully “caution employees against online discussions that could become heated or controversial” because discussions about working conditions or unionism have the potential to become precisely that.
“You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. . . .”
Unlawful. The NLRB’s General Counsel takes the position that “by telling employees that they should use internal resources rather than airing their grievances online...this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.” Employers may “reasonably suggest” that employees use internal procedures. The legal or practical difference between “encourag[ing]” and “reasonably suggest[ing]” is unexplained.
“Avoid harming the image and integrity of the company. Avoid disparaging or defamatory comments.”
Unlawful, as overly broad.
What, employers are probably now asking, can an employer prohibit in a social media policy? The Report does offer some guidance, including a sample social networking policy of which it approves.
The Report explains that although overly broad and ambiguous rules may run afoul of Section 7, “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.” When an employer provides sufficient examples of prohibited conduct, the Report reasons, employees would not reasonably read the rules to prohibit Section 7 activity.
Thus, an employer may prohibit discriminatory or disparaging remarks, bullying, harassment, and threats of violence as long as it offers examples of “plainly egregious conduct” not protected by Section 7. An employer may, moreover, state that employees are “more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet.” (The difference between this approved language and the “encouragement” declared unlawful is a mystery.)
Finally, an employer may prohibit the disclosure of “confidential information” or trade secrets, so long as it defines that information sufficiently narrowly, such as to include “information regarding the development of systems, processes, products, know-how and technology” and “reports, policies, procedures or other internal business-related confidential communication.”
The Report draws a line between broad and ambiguous policies – which it deems to be unlawful - and policies that clarify and restrict general admonitions by providing specific examples of plainly egregious employee behavior not protected under Section 7 rather than relying on general disclaimer language. The Report fails, however, to acknowledge the virtues of broad policy language to, among other things, allow for the exercise of employer discretion and consideration of context. Unless an employer crafts a 50-page social media policy, its specific examples of “egregious conduct” may have the unintended effect of restricting the policy more than necessary to avoid chilling Section 7 rights.
The Report represents the latest in a series of extremely pro-employee positions taken by the Board, and it will likely not be the last. At minimum, employers should review their social media policies to determine whether those policies contain any of the language expressly declared unlawful in the Report. If you would like some assistance with crafting a compliant social media policy, please contact Katy Rand at firstname.lastname@example.org, Michelle Bush at email@example.com, or any other member of Pierce Atwood’s Employment Group.
Employers can obtain a complete copy of the General Counsel’s Report, including a copy of the social media policy that has been given the Board’s stamp of approval at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies.