Social Media Policy's Ban on Postings with Staff Photos, Confidential Information and the Company's Name or Logo Is Unlawful: NLRB General Counsel's Office | Practical Law

Social Media Policy's Ban on Postings with Staff Photos, Confidential Information and the Company's Name or Logo Is Unlawful: NLRB General Counsel's Office | Practical Law

The National Labor Relations Board (NLRB) General Counsel's Office recently released an advice memorandum in Rehabilitation Institute of Chicago, providing guidance on whether provisions of an employer's social media policy would reasonably be construed to chill Section 7 protected activity in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA).

Social Media Policy's Ban on Postings with Staff Photos, Confidential Information and the Company's Name or Logo Is Unlawful: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 03 Sep 2013 • USA (National/Federal)
The National Labor Relations Board (NLRB) General Counsel's Office recently released an advice memorandum in Rehabilitation Institute of Chicago, providing guidance on whether provisions of an employer's social media policy would reasonably be construed to chill Section 7 protected activity in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA).
On August 29, 2013, the NLRB's General Counsel's Office, which heads the NLRB's prosecutorial functions, issued an advice memorandum, dated December 20, 2011, regarding the provisions of the social media policy of Rehabilitation Institute of Chicago (RIC). The Division of Advice found that portions of RIC's social media policy are unlawfully overbroad.
The Division of Advice scrutinized the following portions of RIC's social media policy:
RIC prohibits employees from photographing, recording or providing information regarding... RIC staff for uploading on any public forums/websites which may include, but are not limited to YouTube, Facebook, or MySpace. Furthermore, employees are not allowed to use RIC's name and/or logo on any websites..."
... Do not post confidential or proprietary information about RIC, ... or employees and do not discuss RIC related matters on social media."
The Division of Advice applied the two-step inquiry established in Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004), to determine if the provisions would "reasonably tend to chill employees in the exercise of their Section 7 rights."
The Division of Advice found unlawful the prohibition against:
  • Providing information about RIC staff as a violation of Section 8(a)(1) because without clarification or narrowing of the scope of the prohibition to exclude Section 7 activity, the rule would reasonably be interpreted to prohibit employees' from exercising their Section 7 right to discuss terms and conditions of employment such as wages.
  • Photographing or recording employees for any public forums/websites because it would reasonably be interpreted to prevent employees from using social media to communicate and share pictures of Section 7 activity such as picketing.
  • Using RIC's name or logo because employees would reasonably construe this rule to prohibit the use of the employer's logo or trademark in online Section 7 communications. The Division of Advice, while conceding that an employer has a proprietary interest in its trademarks, found that the interests protected by the trademark laws are "not remotely implicated by employees' non-commercial use of a name, logo or other trademark to identify the Employer in the course of engaging in Section 7 activity related to their working conditions."
  • Posting confidential information about RIC or its employees, or discussing RIC on social media unlawfully overbroad because:
    • the Board recognizes that "confidential information" would reasonably be interpreted to include information concerning terms and conditions of employment, unless its scope was narrowed to exclude Section 7 activity; and
    • the term "RIC related matters" is unlawful because it would clearly be construed to include the terms and conditions of employment.