The Law and Business of Social Media
July 26, 2012 - Employment Law

The NLRB Weighs In (Again) On Social Media Policies

The NLRB Weighs In (Again) On Social Media Policies

With the issuance of its third guidance document on workplace social media policies in the past year, the National Labor Relations Board (NLRB) continues to refine its position on how to craft workplace social media policies that are consistent with the terms of the National Labor Relations Act (NLRA).

Section 7 of the NLRA provides employees with the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  This right applies regardless of whether the employees are members of a labor union.  The NLRB’s guidance on this subject suggests that employee social media policies that discourage the exercise of these rights may run afoul of the NLRA.

The NLRB’s third memorandum, issued by Acting General Counsel Lafe Solomon, analyzes in detail seven different social media policies at issue in recent cases before the NLRB.  Six of these policies were found by the NLRB to contain provisions that are contrary to the NLRA, while the seventh “revised” policy was upheld in its entirety as lawful.  The NLRB specifically questioned the breadth of the following types of provisions, many of which are commonly found in social media policies:

  • Prohibitions on the disclosure of confidential or “non-public” information, or of matters concerning individual privacy rights, via social media. Instructions not to reveal non-public information may be unenforceable as applied to discussions about, or criticism of, the employer’s labor policies and its treatment of employees. The NLRB noted such a tension in policy requiring social media users not to “reveal non-public company information on any public site,” where the explanation of non-public company information did not include appropriate carve-outs for activities protected under Section 7.
  • Prohibitions on the disclosure of an individual’s personal information via social media.  The NLRB took issue with a social media policy instructing employees: “[D]on’t disclose [personal information regarding employees and other third parties] in any way via social media or other online activities.” As the NLRB explained, “[I]n the absence of clarification, employees would reasonably construe it to include information about employee wages and their working conditions.”
  • Discouragements of the “friending” of one’s co-workers.  According to the third memorandum, a policy statement advising employees to “think carefully about ‘friending’ other co-workers” could be construed as unlawfully discouraging employees from communicating regarding the terms of their employment.
  • Requirements that employee grievances be addressed through internal procedures, rather than aired online.  A social media policy providing the employer “believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet” was found to be unlawful, according to the NLRB, because it might inhibit employees from “seeking redress through alternative forums.” The NLRB noted, however, that employers may “reasonably suggest” availing of internal dispute resolution procedures.
  • Prohibitions on the sending of unsolicited communications to other employees. The NLRB found a policy requiring employees to report receiving “unsolicited or inappropriate electronic communications” to be an impermissible restraint on employees’ right to discuss their employment conditions.
  • Restrictions on public discussions of personal opinions regarding work.  One policy discussed in the memorandum expressly permitted employees to discuss online their personal opinions about work-related issues, but only to other employees and not to the general public. The NLRB found this overbroad because the right to discuss employment conditions extends to discussions with non-employees.
  • Prohibitions on comments regarding pending legal matters.  A policy providing, “Don’t comment on any legal matters, including pending litigation or disputes,” was found to be unlawful on the basis that it “restricts employees from discussing the protected subject of potential claims” against their employer.
  • Prohibitions on responding to government inquiries.  The NLRB found that one employer’s direction to employees not to respond to communications from government agencies was overbroad “to the extent that it restricts employees from their protected right to converse with [NLRB] agents or otherwise concertedly seek the help of government agencies regarding working conditions, or respond to inquiries from government agencies regarding the same.”
  • Requirements that employees check with the legal department or human resources (HR) department prior to posting or communicating with the media.  Requiring employees to secure permission from their employer before engaging in activities protected under Section 7, the memorandum noted, is prohibited by the NLRA.

Analyzing employer social media policies under the NLRA continues to be major enforcement priority of the NLRB, although the NLRB’s position on social media policies remains, for the most part, untested by the courts.  The third memorandum underscores how the precise wording of the policy is critical to whether it is considered overbroad by the NLRB.  Social media policies that distinguish between the prohibited behavior and concerted activities excluded by the policy, and that provide examples of each, would be more likely to withstand NLRB scrutiny.  By contrast, the third memorandum cautions employers against relying on a so-called “savings clause” (such as a general statement that the policy will not be interpreted in a manner inconsistent with the NLRA) if “employees would not understand from this disclaimer that protected activities are in fact permitted.”

Alongside its long list of examples of potentially unlawful policy language, the third memorandum provides one example of a social media policy that it considered lawful.  Although this exemplar, which is attached to the NLRB memorandum in full, will not meet the needs of all employers, it may serve useful as a resource against which to compare your company’s social media policy.  As the NLRB’s position on this subject evolves, we suggest consulting counsel to address whether specific provisions of your company’s social media policy are consistent with the NLRB’s guidance.