The National Labor Relations Board Discusses Employer Social Media Policies (Again)

by Pierce Atwood LLP

[authors: Katy Rand and Michelle Bush]

As workplace conversations have migrated from the water cooler to the internet, more and more employers have adopted social media policies, hoping to place some reasonable limits on what their employees say on-line.  In a Report issued last week, the Acting General Counsel of the National Labor Relations Board (NLRB) further illuminated the Board’s position regarding when these policies will and will not run afoul of the National Labor Relations Act (NLRA).   Many social media policies no doubt contain language that would now be considered unlawful by the NLRB’s General Counsel, so employers averse to risk should get ready, once again, to revise their policies.

The concern over social media policies is driven by Section 7 of the NLRA, under which employees—regardless of union membership—have a right to engage in protected, concerted, activity for their mutual aid and protection.  The NLRB Report analyzes several different social media policies and comments on whether the provisions contained therein are unlawful because of their potentially chilling effect on employees’ Section 7 rights.  Examples of policy language, followed by the Report’s judgment as to their lawfulness, follow:

“Don’t release confidential . . . company information”

Unlawful.  According to the Report, prohibitions on posting “confidential,” “proprietary,” or “non-public” information are overbroad, and could reasonably be construed as prohibiting employees from discussing terms and conditions of employment.

“If you engage in a discussion related to [Employer] . . . you must be sure that your posts are completely accurate and not misleading.”

Unlawful.  Because this provision could be interpreted to apply to discussions about or criticism of the employer’s labor policies or its treatment of employees, it is overbroad, says the Report.

“Don’t post photos, music, videos, quotes, or personal information of others without their permission.”

Unlawful.  According to the Report, employees would reasonably interpret this provision to prohibit them from posting photographs and videos of employees picketing, for example. 

“Don’t use the company’s logo or trademarks.”

Unlawful.   Apparently, an employee’s non-commercial use of an employer’s logo or trademarks on a picket sign or in a rant about wages, hours and working conditions on Facebook, outweighs the employer’s proprietary interest in its trademarks.

“Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.  We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.”

Unlawful.   Without any limiting language clarifying that this provision does not restrict Section 7 activity, this provision is overly broad and includes a range of communications that would include protected criticisms of the labor policies.   Note, moreover, that the “limiting language” cannot appear in a general disclaimer or “savings clause” to the effect that “the policy will be administered in compliance with applicable laws and regulations.”  According to the Report, disclaimers are insufficient to cure the ambiguities in the overly broad rules. 

“Think carefully about ‘friending’ co-workers . . . on external social media sites.  Communications with co-workers on such sites that would be inappropriate in the workplace are also inappropriate online and what you say in your personal social media channels could become a concern in the workplace.”

Unlawful.  This provision would “discourage communications among co-workers,” the Report states, thereby necessarily interfering with Section 7 activity.

“Don’t comment on any legal matters, including pending litigation of disputes.”

Unlawful.  Section 7 protects the rights of employees to discuss potential claims against their employer on the Internet.

“Adopt a friendly tone when engaging online.  Don’t pick fights.”

Unlawful.  According to the Report, employers cannot lawfully “caution employees against online discussions that could become heated or controversial” because discussions about working conditions or unionism have the potential to become precisely that.

“You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. . . .”

Unlawful.   The NLRB’s General Counsel takes the position that “by telling employees that they should use internal resources rather than airing their grievances online...this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.”  Employers may “reasonably suggest” that employees use internal procedures.  The legal or practical difference between “encourag[ing]” and “reasonably suggest[ing]” is unexplained.

“Avoid harming the image and integrity of the companyAvoid disparaging or defamatory comments.” 

Unlawful, as overly broad.

What, employers are probably now asking, can an employer prohibit in a social media policy?  The Report does offer some guidance, including a sample social networking policy of which it approves.

The Report explains that although overly broad and ambiguous rules may run afoul of Section 7, “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.”  When an employer provides sufficient examples of prohibited conduct, the Report reasons, employees would not reasonably read the rules to prohibit Section 7 activity.

Thus, an employer may prohibit discriminatory or disparaging remarks, bullying, harassment, and threats of violence as long as it offers examples of “plainly egregious conduct” not protected by Section 7. An employer may, moreover, state that employees are “more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet.”   (The difference between this approved language and the “encouragement” declared unlawful is a mystery.)

Finally, an employer may prohibit the disclosure of “confidential information” or trade secrets, so long as it defines that information sufficiently narrowly, such as to include “information regarding the development of systems, processes, products, know-how and technology” and “reports, policies, procedures or other internal business-related confidential communication.”

The Report draws a line between broad and ambiguous policies – which it deems to be unlawful - and policies that clarify and restrict general admonitions by providing specific examples of plainly egregious employee behavior not protected under Section 7 rather than relying on general disclaimer language.  The Report fails, however, to acknowledge the virtues of broad policy language to, among other things, allow for the exercise of employer discretion and consideration of context.  Unless an employer crafts a 50-page social media policy, its specific examples of “egregious conduct” may have the unintended effect of restricting the policy more than necessary to avoid chilling Section 7 rights.

The Report represents the latest in a series of extremely pro-employee positions taken by the Board, and it will likely not be the last.   At minimum, employers should review their social media policies to determine whether those policies contain any of the language expressly declared unlawful in the Report.   If you would like some assistance with crafting a compliant social media policy, please contact Katy Rand at, Michelle Bush at, or any other member of Pierce Atwood’s Employment Group.

Employers can obtain a complete copy of the General Counsel’s Report, including a copy of the social media policy that has been given the Board’s stamp of approval at


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.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP

Pierce Atwood LLP 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.