NLRB Issues Third Report on Social Media Cases, Including Model Policy

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by Denise M. Keyser and Mary Cate Gordon

Social media remains a hot topic at the National Labor Relations Board (NLRB). On May 30, 2012, the Acting General Counsel of the Board issued yet another Operations Management Memo on social media cases—the GC’s third report on the subject in less than a year.

The previous reports—in August 2011 and January 2012—addressed both concerted, protected activity on Facebook and other social media sites, as well as employer policies governing employees’ social media use. The latest report focuses solely on policies and provides more definitive guidance on just what employer policies can and cannot say under the National Labor Relations Act (NLRA).

The new report focuses on seven cases. In six, the GC—who is charged with enforcing the NLRA and decides which cases are prosecuted before the Board—finds portions of various employer policies overly broad and in violation of the Act. In the seventh case, the GC approves the entire policy at issue, in effect, providing a template for employers seeking to regulate their employees’ use of social media.

The GC continues to be highly critical of employer policy language that could be perceived by employees as prohibiting protected, concerted activity, such as employee discussions of wages and other terms and conditions of employment, and employee plans for group action or complaints. Thus, the report finds unlawful employer prohibitions on the discussion of “confidential” information, the “friending” of co-workers, the use of offensive or abusive language, the disclosure of personal employee information, and commenting on legal matters involving the employer.

Also declared unlawful by the GC are requirements that employees:

  • Obtain the employer’s permission before posting any comments
  • Report “inappropriate” use of social media
  • Communicate online in a “professional” manner
  • Resolve employment-related issues through an in-person forum

The GC maintains the position outlined in prior reports that a generalized “savings clause”—promising that the policy will not be applied to protected, concerted activity under the Act—will not cure an ambiguous, overbroad policy.

On the permissible side, the GC finds lawful portions of various policies, including prohibitions against online bullying and the disclosure of attorney-client privileged information, and requirements that employees respect all copyright and other intellectual property laws.

But perhaps the most significant aspect of the third report is its approval in its entirety of the policy considered in the last case addressed. By approving the policy as is, the GC has finally begun to “connect the dots” for employers by providing more substantive guidance on just what constitutes a lawful social media policy.

The approved policy undoubtedly will serve as a model for some employers, but it does not address many employee actions or statements that employers may want to regulate. In drafting their own policies, employers should heed the report’s suggestion to define the terms used in their policies, use examples of prohibited conduct where possible, and be specific and precise in outlining the policies’ prohibitions.

Although most NLRB litigation involves unionized workforces, the social media reports, notably, have not. Most, if not all, of the cases appear to have arisen in workplaces without unions. The right to engage in protected, concerted activity is granted to all workers covered by the NLRA—not just organized labor—so even employers without unionized workers should take note of the GC’s reports.

Given the pervasive nature of social media in the lives of most Americans, it is likely that this will continue to be the subject of litigation before the Board, and it is virtually certain that this third report will not be the final word on social media and the NLRA.

Ballard Spahr’s Labor and Employment Group routinely assists employers in NLRB compliance and in drafting social media policies. If you have questions or concerns regarding social media in the employment context, please contact Denise M. Keyser, 856.761.3442 or keyserd@ballardspahr.com; Mary Cate Gordon, 856.761.3464 or gordonmc@ballardspahr.com; or the lawyer in Ballard Spahr's Labor and Employment Group with whom you work.

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.

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