On May 31, 2012, the National Labor Relations Board (NLRB) issued a third report on social media cases reviewed by the agency (http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies (click on Operations Management Memo)). The report focuses exclusively on employers’ policies governing the use of social media by employees. The Guidance discussed seven cases involving employers’ social media policies. Notably, in six of the seven cases, the NLRB found some or all of the provisions in the policies to be overbroad and lawful.
The NLRB set forth a two step inquiry with respect to its evaluation of social media policies. First, as has always been the case, a policy will be unlawful if it explicitly restricts an employee’s Section 7 rights under the National Labor Relations Act (NLRA). Section 7 of the NLRA provides that employees have the “right to form or join a union and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” If a policy does not explicitly restrict an employee’s Section 7 rights, the following questions will be asked: (1) would employees reasonably construe the language to prohibit such rights?; (2) was the rule promulgated in response to union activity?; or (3) has the rule previously been applied to restrict Section 7 rights?
Specifically, the NLRB found some of the following provisions to be unlawful:
1. “Don’t release confidential guest, team member or company information”;
2. “Never share confidential info with team member unless they have a need to know to do their job”;
3. Threatening employees with discharge for failing to report unauthorized access to or misuse of confidential information will be found to be unlawful;
4. “Do not reveal non-public company info on any public site,” which included personal information of another employee”;
5. A provision prohibiting employees from using employer’s logo and trademarks is unlawful. Although the NLRB recognizes that an employer has proprietary interest in its trademarks, an employee’s non-commercial use of trademarks while engaging in Section 7 activities would not infringe on that interest;
6. “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline”;
7. “Think carefully before friending co-workers”;
8. Encouraging employees to resolve their concerns by speaking with supervisors is unlawful. However, a “reasonable suggestion” that employees do this is acceptable, but stating “should use internal resources” would preclude employees from using alternative forums, such as the NLRB;
9. Any provision that requires employees to report any “unsolicited or inappropriate electronic communications” is overly broad; and
10. Although employer has right to control the release of certain information to the media, an overbroad statement that employees are not required to release any information to the media is unlawful.
Despite all of the bad news set forth above, the NLRB did publish a copy of an employer’s social media policy which it found to be lawful in its entirety. Although this template should not be used “word for word,” employers should use this document as a basis to draft, or revise, their social media policy. An employer’s policy should be drafted based on the nature of its specific business and not simply be a “rehash” of the NLRB-accepted policy.
Based on the NLRB’s Guidance, it is extremely important that you review your social media policy now. Please contact Barley Snyder if you require assistance in reviewing your policy.
