Acting NLRB GC Issues Updated Report Concerning Social Media Cases

by Morgan Lewis
Contact

Report analyzes seven employer social media policies under the National Labor Relations Act, and provides an example of a policy that is considered to be lawful.

On May 30, Lafe Solomon, Acting General Counsel (AGC) of the National Labor Relations Board (NLRB or the Board), issued the third in a series of reports on social media cases. The reports, issued on August 18, 2011, January 24, 2012, and May 30, 2012, respectively, present the AGC's views on whether unfair labor practice charges arising in the context of social media should be prosecuted. It is important to note that these reports do not constitute binding NLRB precedent. They only reflect the AGC's position for purposes of determining whether an unfair labor practice charge should be prosecuted.

The most recent report analyzes seven employer social media policies under the National Labor Relations Act (NLRA or Act) and is notable in three respects: (1) for the first time, it sets forth a sample social media policy that the AGC deems lawful under the Act; (2) it reflects that the AGC has reversed course and now believes that an employer may require employees to include a disclaimer that views expressed on social media are the employee's own and not those of the company; and (3) it finds a social media policy to be unlawful insofar as it encourages employees to utilize internal procedures to resolve concerns instead of social media or online forums.

Background

An employer's social media policy or rule may violate Section 8(a)(1) of the Act if it "would reasonably tend to chill employees in the exercise of their Section 7 rights." Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enf'd, 203 F. 3d 52 (D.C. Cir. 1999). The NLRB has found that a policy or rule is clearly unlawful if it explicitly restricts activity protected by Section 7 of the Act. If the policy or rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that (1) employees would reasonably construe the language to prohibit Section 7 activity, (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Policies that are ambiguous as to their application to Section 7 activity may also be unlawful if they contain no limiting language or context that would demonstrate to employees, in a manner in which they can understand, that the policy does not restrict Section 7 rights. University Medical Center, 335 NLRB 1318, 1320–1322 (2001), enf. denied in pertinent part, 335 F.3d 1079 (D.C. Cir. 2003). Notably, a social media policy may be deemed to be unlawfully overbroad under the NLRA even if it applies only to nonunion workers.

Lawful Social Media Policy Provided as Guidance

In the May 30 report, the AGC sets forth, in full, a social media policy that was found to be entirely lawful under the Act. In concluding that the policy is lawful, the AGC stated that the policy "provides sufficient examples of prohibited conduct so that, in context, employees would not read the rules to prohibit Section 7 activity." For example, the AGC noted the following:

  • The "Be Respectful" portion of the social media policy could be overly broad because of its exhortation to be respectful and fair and courteous in the posting of comments, complaints, photographs, or videos. However, the policy counsels employees to avoid posts that could be viewed as "malicious, obscene, threatening or intimidating" and further explains that prohibited harassment and bullying would include "offensive posts meant to intentionally harm someone's reputation" or "posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy." The AGC found that employers have a legitimate basis to prohibit such workplace communications, and the policy as written does so without burdening protected communications about terms and conditions of employment.
  • A section of the policy that required employees to maintain the confidentiality of the employer's trade secrets and private and confidential information was not unlawful because the employer's rule provided sufficient examples of prohibited disclosures (i.e., products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions or wages.

A copy of the approved social media policy may be viewed in full here.

Position on Policies Requiring Employee Disclaimers Reversed

In his January 2012 report concerning social media cases, the AGC considered the lawfulness of a social networking policy that required employees to expressly state that their comments are their personal opinions and do not necessarily reflect the employer's opinions. At that time, the AGC found that requiring employees to expressly state in their posts that their comments are their personal opinions and not those of the employer "would significantly burden the exercise of employees' section 7 rights to discuss working conditions and criticize the Employer's labor policies in violation of Section 8(a)(1)." NLRB Office of the General Counsel, Memorandum OM 12-31, p. 15 (January 24, 2012).

However, in the May 30, 2012, report, the AGC appears to have reversed that position. He evaluated a policy that provided:

Any comments directly or indirectly relating to [the employer] must include the following disclaimer: "[T]he postings on this site are my own and do not represent [the employer's] positions, strategies or opinions."

The AGC found that such a requirement is not unlawful because an employer "has a legitimate need for a disclaimer to protect itself from unauthorized postings made to promote its product or services" and that the requirement does not unduly burden employees in the exercise of their Section 7 right to discuss working conditions.

Provision Encouraging Use of Internal Procedures to Address Complaints Deemed Unlawful

In the new report, the AGC addressed the legality of a policy that stated the following:

"You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. . . . [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these type[s] of concerns."

The AGC found this provision to be illegal because, while "an employer may reasonably suggest that employees try to work out concerns over working conditions through internal procedures," an employer may not tell employees that they should use internal resources rather than air their grievances online. This is despite the fact that the language did not require, but only "encouraged," employees to use an internal grievance procedure rather than social media for their grievances. The reasoning by the AGC was that such encouragement could preclude or inhibit employees from engaging in protected speech online.

Conclusion

Employers should thoroughly review policies concerning social media, use of email, confidentiality, privacy, codes of conduct, and any other policies that may be incorporated by reference in a social media policy. The AGC's reports, while they do not constitute binding NLRB precedent, do provide guidance on how these types of policies should be drafted in order to avoid charges that a policy violates the NLRA.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis
Contact
more
less

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.