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

by McNees Wallace & Nurick LLC

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.


Written by:

McNees Wallace & Nurick LLC

McNees Wallace & Nurick LLC 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):

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.


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 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:

- 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.