Yesterday, the National Labor Relations Board announced in this press release that it had issued a second social-media
report to help provide further guidance to practitioners and human resource
professionals. The social-media memo, a copy of which you can obtain here, covers 14 cases, half of which involve questions
about employer social-media policies. Those seven cases that address the scope
of social-media policies underscore that they should not be so broad as to
chill employee's rights to engage in protected
concerted activity such as the discussion of wages or working conditions.
What does the National Labor Relations Board
say you can't do?
Most of the social-media policies that the NLRB addressed
were found to be overly broad. For example, in one case, the NLRB found that an
employer rule forbidding employees from "[m]aking disparaging comments
about the company through any media, including online blogs, other electronic
media or through the media" was deemed unlawful because "it would
reasonably be construed to restrict Section 7 activity (more on Section 7 here), such as statements that the employer is, for
example, not treating employees fairly or paying them sufficiently."
In another case, the NLRB deemed unlawful a social-media
policy that provided that "employees should generally avoid identifying
themselves as the Employer's employees unless discussing terms and conditions
of employment in an appropriate manner." That too would infringe upon
Section 7 rights to discuss terms and conditions of employment -- even if those
discussions were "inappropriate." Here, the NLRB further determined
that an employer disclaimer in the social-media policy that nothing in the
policy should be construed to prohibit employee rights under the National Labor
Relations Act was not enough to make the overall policy lawful:
We also found that the "savings
clause" in the Employer's social media policy was insufficient to cure the
ambiguities in the rule and remove the chill upon Section 7. The savings clause
provided that the policy would not be interpreted or applied so as to interfere
with employee rights to self-organize, form, join, or assist labor
organizations, to bargain collectively through representatives of their
choosing, or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from
engaging in such activities. We explained that an employee could not reasonably
be expected to know that this language encompasses discussions the Employer
So, what can you do?
Fortunately, the NLRB offered some guidance in this area.
One subject policy referenced in the report was found to be lawful; another
became lawful after it was revised. Let's address the second one first.
In that case, the Employer's original social-media policy
prohibited "discriminatory, defamatory, or harassing web entries about
specific employees, work environment, or work-related issues on social media
sites." Subsequently, the Employer replaced that policy with one that
prohibited the use of social media to "post or display comments about
coworkers or supervisors or the Employer that are vulgar, obscene, threatening,
intimidating, harassing, or a violation of the Employer's workplace policies
against discrimination, harassment, or hostility on account of age, race,
religion, sex, ethnicity, nationality, disability, or other protected class,
status, or characteristic."
Shockingly, the NLRB deemed the original policy overly
broad because employees had the right to engage in protected concerted activity
to criticize employer policies and treatment of employees -- even if that
speech is "defamatory." The NLRB, however, found that the amended
policy was lawful because "a rule's context provides the key to the
'reasonableness' of a particular construction. In this regard, the Board has
found that a rule forbidding 'statements which are slanderous or detrimental to
the company' that appeared on a list of prohibited conduct including 'sexual or
racial harassment; and 'sabotage' would not be reasonably understood to
restrict Section 7 activity."
In another case involving a national drugstore chain, the
Board concluded that the following provision in a social-media policy was not overly
broad and, therefore, lawful.
The Employer's social media policy provided
that the Employer could request employees to confine their social networking to
matters unrelated to the company if necessary to ensure compliance with
securities regulations and other laws. It prohibited employees from using or
disclosing confidential and/or proprietary information, including personal
health information about customers or patients, and it also prohibited
employees from discussing in any form of social media "embargoed
information," such as launch and release dates and pending
So, here are three tips based on the NLRB
This article was originally published on Eric B. Meyer's blog, The Employer
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