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NLRB General Counsel Issues Third Report on Employees' Use of Social Media
Practical Law Legal Update 3-519-7146 (Approx. 7 pages)
NLRB General Counsel Issues Third Report on Employees' Use of Social Media
by PLC Labor & Employment
| Published on 31 May 2012 • USA (National/Federal) |
The General Counsel of the National Labor Relations Board (NLRB) released a third report on employees' use of social media, focusing on employers' social media policies.
On May 30, 2012, the NLRB's General Counsel released a third report on employees' use of social media, focusing on employers' social media policies. The report follows two earlier reports on social media released in the past year (see Legal Updates, NLRB General Counsel Issues Report on Emerging Issues Involving Employee Use of Social Media and NLRB General Counsel Issues Second Report Concerning Restrictions on Employees' Use of Social Media).
The report summarized seven recent unfair labor practices (ULP) cases reviewed by the General Counsel's office that dealt with employers' social media policies, and clarified that the General Counsel considers employers' social media rules:
- Unlawful where it is unclear whether they apply to protected concerted activity and do not contain limiting language or context to clarify their application.
- Lawful where they clearly restrict their scope by including examples of unprotected conduct such that they cannot reasonably be construed to limit protected activity.
Although the General Counsel's report is not binding, since it was not issued by the Board itself, the report provides insight on when employers' social media policies could be subject to ULP complaints. Page 22 of the report also includes a sample social media policy that the General Counsel considered entirely lawful. Employers may find the sample policy helpful when considering how to construct or revise their own social media policies to conform with the NLRB's rules.
In considering these seven social media policies, the General Counsel continued to:
- Rely on Lafayette Park Hotel, 326 N.L.R.B. 824 (1998), and Martin Luther Memorial Home, Inc., 343 N.L.R.B. 646 (2004), to determine whether a social media rule would chill an employee's exercise of Section 7 rights.
- Find policies unlawful where they prohibited the disclosure of confidential information without giving examples of what information the policies covered. Without these examples, the policies could be construed to prohibit employees from discussing or disclosing information on their wages and other terms and conditions of employment, which is protected under Section 7.
In several instances, the General Counsel's report also found that "savings clauses," stating the policy would be administered to comply with the National Labor Relations Act (NLRA) or was not intended to interfere with NLRA rights, could not cure the policies' ambiguities or unlawfully broad language.
Unlawful Social Media Rules
The General Counsel's office concluded that various rules or policies were unlawful where they:
- Required employees to be completely accurate and not misleading in their social media posts, because employee criticism of an employer's labor policies is protected so long as it is not maliciously false (see Alaska Pulp Corp., 296 N.L.R.B. 1260 (1989)).
- Prohibited employees from revealing any non-public information, where the definition of non-public information either:
- specifically encompassed topics related to protected activity, such as an employee's performance, compensation or status in the company; or
- was vague enough that employees could reasonably construe it to include protected activity.
- Prohibited an employee from posting without prior permission from his employer (see Mercury Marine-Div. of Brunswick Corp., 282 N.L.R.B. 794 (1987)).
- Generally prohibited "offensive, demeaning, abusive or inappropriate comments," without explaining what those terms included.
- Discouraged protected communications among co-workers by instructing employees to:
- think carefully before "friending" co-workers online; and
- report unusual or inappropriate internal social media activity.
- Prohibited the disclosure of personal information about the employer's employees and contingent workers without clarifying that disclosure of information about their wages and other terms and conditions of employment were permitted.
- Prohibited employees from commenting on legal matters.
- Warned employees not to "pick fights" online and to avoid topics that could be considered objectionable or inflammatory, and reminded employees to be professional in their communications, which could restrict discussions about working conditions or unions that could be controversial and inflammatory.
- Encouraged employees to resolve work concerns by speaking with co-workers, supervisors or managers rather than post them online or seek redress externally.
- Warned employees to avoid harming the employer company's image and integrity.
- Prohibited employees from expressing their opinions on the workplace, their work satisfaction or dissatisfaction, wages, hours or work conditions, or from making disparaging or defamatory remarks about the employer.
- Required employees to report any unsolicited or inappropriate electronic communications they received.
- Prohibited employees from participating in social media activities while on company time without excluding non-working time in non-work areas (see Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).
- Restricted employees in communicating with the media or blogging or making speeches or presentations without prior approval.
- Restricted employees in talking to government agencies.
Lawful Social Media Rules
Conversely, the General Counsel's office found other rules or policies lawful where they:
- Advised employees to be careful about unwittingly disclosing specified confidential information without prohibiting any particular communications.
- Prohibited employees from discussing information related to the performance of the employer's systems or components, where the provision would reasonably be construed to refer to the safety of the employer's systems, not workplace safety.
- Prohibited discussion of confidential, secret or privileged information where the provision did not refer to information about employees.
- Prohibited employees from disclosing personal information about customers, customers' patients, providers, business partners or third parties to anyone other than authorized persons.
- Urged employees to respect copyright and other intellectual property laws, except where the policy required employees to receive permission before reusing other persons' content or images, because that could potentially chill employees from taking and posting photos of employees engaged in protected picketing.
- Advised employees to use their best judgment and exercise personal responsibility while online.
- Prohibited online harassment, bullying, retaliation or discrimination that would be prohibited in the workplace, where the rule's context clearly indicated it would be unreasonable to construe the policy as prohibiting protected activity.
- Prohibited unauthorized postings online in the employer's name or in a manner that could reasonably be attributed to the employer.
- Required employees to state that their postings did not reflect their employer's positions or opinions.
- Required employees to maintain the confidentiality of their employer's trade secrets, as employees have no protected right to disclose trade secrets.
Practical Implications
In light of this report, employers should ensure their social media policies:
- Are clearly inapplicable to protected concerted activity.
- Include sufficient examples of prohibited conduct so the rules cannot reasonably be construed to limit any concerted activity.
For more information on NLRA-compliant social media policies, see Standard Document, Social Media Policy (US).