Three's Company: NLRB Issues Third Social Media Policy Report

by McNees Wallace & Nurick LLC
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This post was contributed with the assistance of Lee E. Tankle, a summer associate with McNees Wallace & Nurick LLC. Mr. Tankle will begin his third year of law school at William & Mary School of Law in the fall, and he expects to earn his J.D. in May 2013.

The National Labor Relations Board's ("NLRB") Acting General Counsel ("AGC") released yet another social media report recently (pdf), the third report in the last nine months. The report summarizes the AGC's view on seven social media policies' compliance with Sections 7 and 8 of the National Labor Relations Act ("NLRA"). This latest report, unlike the last two reports, does provide some guidance to employers on how to craft a social media policy that the AGC would deem lawful under the NLRA.

Importantly, Section 7 applies to all employers covered by the NLRA, regardless of whether an employers' employees are represented by a union. Section 7 provides employees the right to collectively bargain, self-organize, form, join, and assist labor organizations as well as refrain from participation in any of these activities. Section 8 prohibits employer interference with the exercise of Section 7 rights and is violated if employer activity would reasonably tend to chill employees in the exercise of their Section 7 rights.

The AGC makes clear in the report that policies that are ambiguous as to their application to Section 7 activity, and policies that contain no limiting language or context to clarify that the policy will not interfere with Section 7 rights, will be deemed unlawful. According to the AGC, the following social media policy provisions could "chill" employee rights and are unlawful under the NLRA:

• Provision forbidding release of confidential customer, employee or company information;
• Provision forbidding employees from publicly stating opinions about work satisfaction or dissatisfaction, wages, hours or work conditions;
• Provision requiring information posted about the employer to be "completely accurate and not misleading";
• Provision preventing employees from posting photos, music, videos and quotes of others without obtaining owner's permission;
• Blanket provision preventing the use of employer's logo or trademarks;
• Blanket provision banning offensive, demeaning, abusive, or inappropriate remarks;
• Provision instructing employees to think carefully before "friending" co-workers;
• Provision instructing employees to report unusual or inappropriate social media activity;
• Provision telling employees they should use internal resources rather that airing grievances online;
• Provisions requiring employees to "avoid harming the image and integrity of the company" and banning "disparaging or defamatory" remarks;
• Broad prohibition of social media use on "company time";
• Broad prohibition on employees communicating with the press; and
• Broad prohibition on employees communicating with government agencies.

Furthermore, the AGC does not look kindly upon blanket "disclaimer" provisions that merely state that policies will be administered in compliance with Section 7. These provisions are unlikely to protect an employer from a social media policy related claim.

However, the news was not all bad. The AGC made clear that the inclusion of examples of prohibited conduct can help clarify ambiguities. In addition, certain disclaimer provisions may save an otherwise overly broad policy. In addition, the following social media policy provisions were found to be lawful:

• Provision encouraging employees to be suspicious and use caution when asked to reveal confidential information;
• Provision requiring employees not to post product safety performance information;
• Provision banning online harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace;
• Provision requiring employees to seek permission before posting in the name of an employer or posting in a manner that could reasonably be attributed to the employer; and
• Provision requiring employees to state that their postings are their own and do not represent employer's positions, strategies, or opinions.

Interestingly, the AGC also provided a sample social media policy that he deemed lawful. While the sample policy will not be sufficient for the majority of employers, and we do not suggest merely adopting the policy wholesale, it is a good start. While it is possible to have an effective social media policy while ensuring that your employees Section 7 rights remain uninhibited, you should still be sure to craft such a policy with the assistance of counsel. If you have any questions about your company's social media policy, please contact a member of the McNees Wallace and Nurick Labor and Employment Law Practice Group.

 

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