NLRB General Counsel Issues Second Report Concerning Restrictions on Employees' Use of Social Media | Practical Law

NLRB General Counsel Issues Second Report Concerning Restrictions on Employees' Use of Social Media | Practical Law

The General Counsel of the National Labor Relations Board (NLRB) released a report dated January 24, 2012 that summarizes its guidance in recent unfair labor practice (ULP) cases involving employer responses to employees' use of social media. The report provides guidance on the lawfulness of employer social media policies under the National Labor Relations Act (NLRA).

NLRB General Counsel Issues Second Report Concerning Restrictions on Employees' Use of Social Media

by PLC Labor & Employment
Published on 26 Jan 2012 • USA (National/Federal)
The General Counsel of the National Labor Relations Board (NLRB) released a report dated January 24, 2012 that summarizes its guidance in recent unfair labor practice (ULP) cases involving employer responses to employees' use of social media. The report provides guidance on the lawfulness of employer social media policies under the National Labor Relations Act (NLRA).

Report

The General Counsel's office of the NLRB released a second report on emerging issues in the context of social media, dated January 24, 2012. The General Counsel issued the first report on August 18, 2011 (for more information, see Legal Update, General Counsel Issues Report on Emerging Issues Involving Employee Use of Social Media). While providing summaries and analysis of 14 recent unfair labor practice (ULP) charges, the NLRB's General Counsel notes in the second report that social media includes various online technology tools that enable people to communicate easily on the internet to share information and resources. The General Counsel's office issued the second report because:
  • The five member panel (Board) heading the NLRB's judicial functions has developed no case law on employees' use of social media.
  • NLRB regional offices continue to receive numerous ULP charges about employees' social media postings and the lawfulness of employer's social media policies and need guidance about when to issue and prosecute complaints.
  • Practitioners, human resource professionals, the media and the public continue to identify the NLRB's treatment of social media as a critical issue.

Analysis

The second report elaborates on how the General Counsel's office decides on which social media related ULP charges it will issue and prosecute a complaint. Generally, the NLRB will prosecute complaints about employers whose rules preclude employees from discussing terms and conditions of employment including wages and benefits with:
  • Fellow employees.
  • Outside parties.
Using traditional Board case law analyzing other types of policies restricting employee communication and conduct, the General Counsel provides further guidance about the lawfulness of particular social media policies. The General Counsel adapted Lafayette Park Hotel, 326 N.L.R.B. 824 (1998), which invalidates any employer work rule that chills employees' exercise of their Section 7 rights. To determine if a work rule would have this effect, the Board uses the two-step inquiry established by Lutheran Heritage Village Livonia, 343 N.L.R.B. 646 (2004):
  • A rule is clearly unlawful if it explicitly restricts Section 7 protected activities.
  • If the rule does not explicitly restrict protected activities it will only violate Section 8(a)(1) if:
    • employees would reasonably construe the language to prohibit Section 7 activity;
    • the rule was issued in response to union activity; or
    • the rule has been applied to restrict the exercise of Section 7 rights.
Applying these tests, the General Counsel's office concluded that various rules or policies were unlawful where they:
  • Prohibited making disparaging comments about the company through any media, including:
    • online blogs;
    • other electronic media; or
    • through the media.
  • Were issued five days after an employee was discharged for Facebook postings and providing that, in external social networking situations, employees should generally avoid identifying themselves as the employer's employees, unless:
    • there was a legitimate business need to do so; or
    • when discussing terms and conditions of employment in an appropriate manner.
  • Prohibited employees from using social media to engage in:
    • unprofessional communication that could negatively impact the employer's reputation or interfere with the employer's mission; or
    • unprofessional or inappropriate communication regarding members of the employer's community.
  • Prohibited employees from disclosing or communicating confidential, sensitive or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.
  • Prohibited use of the company's name or service marks outside the course of business without prior approval of the law department. Employees have a Section 7 right to use their employer's name or logo in conjunction with protected concerted activity, such as communicating with fellow employees or the public about a labor dispute.
  • Prohibited employees from publishing any representation about the company without prior approval by senior management and the law department. The prohibition included statements to the media, media advertisements, electronic bulletin boards, weblogs and voicemail.
  • Required that social networking site communications be made in an honest, professional and appropriate manner, without defamatory or inflammatory comments regarding:
    • the employer and its subsidiaries; and
    • their shareholders, officers, employees, customers, suppliers, contractors and patients.
  • Provided in the social networking and weblog portion of a policy that:
    • employees needed approval to identify themselves as the employer's employees; and
    • those employees who had identified themselves must expressly state that their comments are their personal opinions and do not necessarily reflect the employer's opinions.
  • Required, on threat of discipline that employees first bring any work related concerns to the employer.
  • Prohibited discriminatory, defamatory or harassing web entries about specific employees, work environment or work-related issues on social media sites. The General Counsel found this policy unlawful under the second prong of the Lutheran Heritage test since the use of the term "defamatory" is overbroad.
The General Counsel found that policies prohibiting "inappropriate" discussions was unlawfully vague despite a "savings clause," providing that an employer's policy would not be interpreted or applied to interfere with employee rights to:
  • Self-organize, form, join, or assist labor organizations.
  • Bargain collectively through representatives of their choosing.
  • Engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
  • Refrain from engaging in concerted activities.
The General Counsel found that a "savings clause" is insufficient to cure a rule that is ambiguous or restricts Section 7 activity. The General Counsel reasoned that an employee could not reasonably be expected to know that this language encompasses discussions the employer deems "inappropriate."
The General Counsel emphasized that the context for restrictions on employees' use of social media is critical. For social media policies to be lawful, context is key. Context determines whether an employee can reasonably understand a policy to infringe on his Section 7 rights. Applying these principles the General Counsel found a policy unlawfully prohibited the use of social media to post or display comments about coworkers, supervisors or the employer that were:
  • Vulgar, obscene, threatening, intimidating or harassing.
  • A violation of the employer's workplace policies against discrimination, harassment, or hostility on account of any protected class, status or characteristic.
Following the rule established in Tradesmen Int'l, 338 N.L.R.B. 460 (2002), the General Counsel held that this policy would not reasonably be construed to limit Section 7 activity because:
  • It appears in a list of plainly prohibited behavior, such as violations of the employer's workplace policies against discrimination and harassment.
  • There was no evidence that the policy had been used to discipline Section 7 activity.
Another lawful provision provided that while engaging in social networking activities for personal purposes, employees:
  • Must indicate that their views were their own and did not reflect those of their employer.
  • Were prohibited from referring to the employer by name and from publishing any promotional content.
This rule was lawful based on its context. In particular, the General Counsel noted that the rule:
  • Appeared in a section of the employer's social media policy titled "Promotional Content," and included a:
    • preface explaining that "special requirements apply to publishing promotional content online";
    • definition of promotional content as "designed to endorse, promote, sell, advertise, or otherwise support the employer and its products and services"; and
    • reference to FTC regulations.
  • Could not reasonably be interpreted by employees as limiting their communications about employment terms and conditions because it was part of a policy about promotions and advertisements for the employer.

Practical Implications

This report confirms that the NLRB will generally consider that employee venting, gripes and threats of violence are not protected conduct.
In light of this report, employers should ensure that their social media policy:
  • Cannot be construed to explicitly restrict Section 7 protected activities.
  • Provides definitions, examples and other specific guidance regarding each type of prohibited conduct so:
    • it is not overbroad and vague; and
    • employees cannot reasonably construe it to prohibit concerted activity protected under the NLRA.
In the absence of binding Board precedent setting standards in this area, employers, both unionized and nonunionized, should:
  • Apply the factors set out in the General Counsel's reports to determine if an employee's social media usage would be protected or unprotected under the NLRA.
  • Consider the policy language that the General Counsel found lawful and unlawful when drafting or reviewing its own policies.
For more information about NLRA-compliant restrictions of employees' use of social media, see: