NLRB Memo Refines Position on Employer Social Media Policies

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

On the heels of its 2018 Boeing decision, the National Labor Relations Board continues to provide employers with guidance regarding acceptable and unacceptable restrictions on employee social media use. In a September 12 advice memorandum, the board concluded that some parts of a health care employer’s policy pass muster under Boeing, while a few broad prohibitions still conflict with employee concerted activity rights.

The board first approved of sections of the policy that deal with on-duty employee conflicts and restrictions on the use of social media at work, noting the employer’s interest in maintaining discipline on the job. Next, the memo allowed a requirement that employees act respectfully when posting to social media, as part of the policy’s prohibition against offensive or discriminatory online conduct. Finally, the board approved of a requirement that employees include a disclaimer when discussing the company, stating that they are speaking on behalf of themselves and not the business.

The NLRB found two provisions of the policy unlawful. First, the employer cannot require that all social media postings involving the company include honest and accurate statements. This requirement has an unreasonable chilling effect on employee discourse. Second, the policy cannot include a broad prohibition against disclosure of any confidential business information or communications. These policies must be narrowed to protect trade secrets, patient information, etc.

Employers reviewing their social media polices may want to amend their terms to take advantage of the NLRB’s more relaxed position on guidance given to employees. If the policy’s restrictions are specifically tied to legitimate company interests such as preventing harassment or protecting trade secrets, the board will likely view them in a positive light.

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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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