Overbroad Social Media Policy Unlawful with Certain Exceptions: NLRB General Counsel's Office | Practical Law

Overbroad Social Media Policy Unlawful with Certain Exceptions: NLRB General Counsel's Office | Practical Law

The Office of the General Counsel at the National Labor Relations Board (NLRB) recently released an advice memorandum finding portions of a TV station employer's unilaterally implemented social media policy to be unlawful under Sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA). Separately, the Division of Advice found that a portion of the policy that applied only to anchors, reporters, bloggers and other employees with actual social media work responsibilities did not violate the NLRA.

Overbroad Social Media Policy Unlawful with Certain Exceptions: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 14 Apr 2015 • USA (National/Federal)
The Office of the General Counsel at the National Labor Relations Board (NLRB) recently released an advice memorandum finding portions of a TV station employer's unilaterally implemented social media policy to be unlawful under Sections 8(a)(1) and (5) of the National Labor Relations Act (NLRA). Separately, the Division of Advice found that a portion of the policy that applied only to anchors, reporters, bloggers and other employees with actual social media work responsibilities did not violate the NLRA.
On March 31, 2015, the Division of Advice at the NLRB's Office of the General Counsel released an advice memorandum dated January 6, 2014. The Division of Advice found portions of a TV station employer's social media policy to be unlawful under Sections 8(a)(1) and (5) of NLRA.
In January 2013, KMOV-TV, a TV station owned by Belo Corp., implemented a new social media policy without notifying employees or the union. The union representing the station's on-air talent filed an unfair labor practice (ULP) charge, claiming the policy was overbroad and therefore violated Section 8(a)(1), and that the policy violated Section 8(a)(5) because it was implemented unilaterally. The collective bargaining agreement between the station and the union was silent on the station's right to implement social media policies, but a management rights clause in the CBA permitted the station to control the methods in which its on-air talent transmitted information to the public. The station generally encouraged anchors and reporters to post on Facebook and Twitter, but the new social media policy threatened disciplinary action up to and including termination for violating the policy.
Although the Division's advice memoranda do not carry the force of binding precedent from the panel (Board) heading the judicial functions of the NLRB, this memorandum uses the specific example of KMOV-TV's social media policy to provide guidance regarding social media policies and policy language that may violate the NLRA, and outlines factors the NLRB uses when evaluating whether social media policies are lawful.
KMOV-TV's social media policy was divided into two sections. The first section, titled "Personal Activity" applied to all employees and included the following provisions:
"Adhere to Belo’s company harassment and retaliation policies. It is the responsibility of employees to notify management and/or Human Resources immediately of possible sexual or other unlawful harassment without the concern of reprisal or retaliation. Do not post insulting, embarrassing, hurtful or abusive comments about other company employees online. Do not share pictures of other Belo Employees unless the other employee is comfortable with it. Belo expects its employees to treat their co-workers with respect and courtesy at all times."
"Avoid the use of offensive, derogatory, or prejudicial comments."
"Do not defame Belo companies, their employees, clients, customers, audience, business partners or competitors. Indeed you should avoid making defamatory or libelous comments and postings in general as others may attempt to impute these comments to your employer or you as an employee."
"Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors, or customers."
The second section of the policy, which applied only to employees with social media responsibilities, including reporters, anchors and bloggers, contained the following provisions:
"You should do nothing that could undermine your credibility with the public, damage Belo’s standing as an impartial source of news and information, or otherwise jeopardize the organization’s reputation."
"When publishing or otherwise transmitting information online, apply the same journalistic standards you would in a more formal publication, including accuracy and the avoidance of an appearance of bias. With respect to the latter, do not put political affiliations or make political statements on your work profile. The same principles of thoroughness, common sense, and respect for our audience and subjects should prevail in social media as they do in traditional broadcasting or publishing."
"Particular care should be taken in responding to posts critical of our news coverage."
"With respect to Facebook or sites like it where a user has “friends” that are seen by others, use judgment in accepting “friendships” from political candidates, story subjects, public figures, causes, organizations, or businesses as doing so may create a perception that you or your employer are their friends or advocates."
A separate policy in the station's employee handbook prohibited employees from disclosing "business secrets or other confidential information."

Portions of the Social Media Policy Found Unlawfully Overbroad under Section 8(a)(1)

The Division of Advice acknowledged that the social media policy did not expressly restrict Section 7 activities, but found that the language in the social media policy prohibiting employees from posting “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and instructing employees to “[a]void the use of offensive, derogatory, or prejudicial comments":
  • Was overly broad because it could apply to protected criticism of the employer.
  • Lacked definitions of its broad terms or any limits to indicate that it excluded Section 7-protected activity.
  • Could reasonably be construed by employees as prohibiting Section 7 activity (See Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004)).
The Division of Advice found that the social media policy's prohibition on “shar[ing] pictures of other Belo Employees unless the other employee is comfortable with it” violated Section 8(a)(1) because:
  • It would reasonably be interpreted by employees as prohibiting them from posting pictures on social media sites of employees engaged in protected activities (for example, strikes) or posting pictures of unsafe working conditions.
  • Employees were effectively required to get other employees' permission before posting pictures , and this requirement has been found unlawful (See The H Group, B.B.T. Inc., Case 14-CA-30313, Advice Memorandum dated October 13, 2011, at 8).
The Division of Advice found that the portions of the social media policy requiring employees not to “defame Belo companies [or] their employees,” and to “avoid making defamatory or libelous comments and postings in general" was unlawfully overbroad under Section 8(a)(1) because they:
  • Lacked context limiting the scope of the defamation and libel restriction.
  • Would reasonably be construed as prohibiting criticism of the employer's policies, which is protected activity under Section 7.

Confidentiality Provisions of Social Networking Policy and Handbook Did Not Violate Section 8(a)(1)

The Division of Advice found that portions of KROV-TV's social policy addressing confidentiality, as well as a separate section of its employee handbook addressing employees' confidentiality obligations, which included prohibitions on disclosing "confidential financial data," "other company proprietary information" and "information regarding business partners, vendors, or customers" were lawful and did not violate Section 8(a)(1) because the restrictions:
  • Would not reasonably be read as prohibiting employees from discussing protected topics such as wages, benefits and other terms and conditions of employment.
  • Did not reference employee records, personnel data or working conditions.
  • Would be construed as limiting disclosure of private business information, which employers have a legitimate interest in doing.

"Personal Activity" Section of Handbook's Social Media Policy Applicable to All Employees Violated Section 8(a)(5)

The Division of Advice concluded that this section violated Section 8(a)(5) because:
  • The policy was unilaterally implemented despite the NLRB's prior holding that work rules that can be grounds for discipline are mandatory subjects of bargaining. (See Southern Mail, Inc., 345 N.L.R.B. 644 (2005)). Therefore, KROV-TV was required to bargain over the policy prior to implementing it.
  • The union had not waived its right to bargain over the issue because KROV-TV had:
  • The management rights clause did not confer on KROV-TV the right to unilaterally implement the policy and did not constitute a clear and mistakable waiver because the clause:
    • did not contain any reference to social media policies or similar policies; and
    • contained broad and vague language about establishing and enforcing reasonable work rules and regulations, without any grant of unilateral authority to KROV-TV.

Sections of Social Media Policy Applying Only to Employees With Social Media Responsibilities Were Lawful

The Division of Advice found that portions of the social media policy applying only to reporters, anchors, station bloggers and other employees with social media work-related responsibilities were lawful because in the context of the journalism industry, those portions were intended to:
  • Maintain credibility with the public.
  • Apply journalistic standards including accuracy and bias-free reporting.
  • Minimize damage to the station's reputation as an impartial news source. (See Peerless Publications, 283 N.L.R.B. 334 (1987)).
The Division of Advice also found that KROV-TV was privileged under Peerless Publications to unilaterally implement those sections of the policy because they:
  • Adequately conformed with the notion that employers in the journalism industry have a legitimate interest in maintaining their public credibility and editorial integrity.
  • Struck a balance between the employer's legitimate interest and invasion of employees' privacy rights.
  • Were narrowly tailored to KROV-TV's legitimate interest.
  • Unambiguously set forth reasonable reportorial requirements.
  • Specified the limited class of employees to whom the requirements and restrictions applied. (See Peerless Publications, 283 N.L.R.B. 334 (1987)).