The NLRB Cares Deeply About Your Social Media Policy
June 27, 2012

The National Labor Relations Board ("NLRB") recently issued a report that analyzes seven different social media policies to determine whether they violate workers' rights under Section 7 of the National Labor Relations Act ("NLRA"). The NLRB specifically discussed issues with respect to protection of confidential information, non-public information, "friending" co-workers, seeking permission before posting to social media sites, complaint procedures, and respectful use of social media.

Why Does the NLRB Care?

Section 7 of the NLRA grants most employees (not just union members) the right to discuss workplace issues, including possible formation of a union. If Section 7 is violated, employees can file unfair labor practice charges, including claims that the employer interfered with, restrained, or coerced its employees in the exercise of their Section 7 rights. Thus, according to the NLRB, an employer may have committed an unfair labor practice if it maintains a policy that restricts protected activity or would reasonably tend to "chill" or discourage employees in the exercise of their Section 7 rights. Thus, an employer's social media policy may violate the NLRA if it would tend to "chill" employees' ability to discuss workplace issues.

What Can't I Have in My Social Media Policy?

The NLRB has erred on the side of extreme caution when protecting Section 7 rights. In its advisory report, the NLRB has stated that a social media policy violates Section 7 if it contains the following language:

  • "Be respectful." The NLRB has no problem with employees posting demeaning comments about each other, their supervisors, or the company. However, the NLRB agreed that an employer could restrict social media posts that are: malicious, obscene, threatening or intimidating; harassing or bullying; meant to intentionally harm someone's reputation; or could contribute to a hostile work environment on the basis of "race, sex, disability, religion or any other status protected by law or company policy."
  • "Avoid inflammatory topics." The NLRB stated that a policy that instructs employees not to "pick fights" and to avoid topics such as politics and religion, is unlawful. The NLRB claims that because discussions about working conditions and unionization have the potential to become just as heated or controversial as discussions about politics and religion, any such provision in a social media policy violates Section 7.
  • "Do not 'Friend' co-workers." The NLRB stated that discouraging "Friending" between co-workers discourages all communications between co-workers, infringing upon their Section 7 rights to communicate.
  • "Employees must obtain permission prior to posting." The NLRB has stated that requiring permission infringes on Section 7 rights. However, the NLRB did not distinguish between the requirement that an employee received permission to post on a company social media account, as opposed to a personal social media account.
  • "Do not release co-worker information." The NLRB stated that prohibiting employees from disclosing employee information necessarily prohibits them from discussing conditions of employment. The NLRB appears unconcerned with worker privacy rights.
  • "You must secure permission before re-using company content or images." Failing to address intellectual property issues, the NLRB stated that employers may not instruct workers to obtain permission before re-using content or images, including company logos.
  • "Employees should resolve concerns via internal complaint mechanisms." Although the NLRB conceded that an employer may "suggest" that employees try to work out their concerns internally, the NLRB stated that the requirement that employees "use internal resources rather than airing their grievances online" violates Section 7 because it "inhibit[s] employees from the protected activity of seeking redress through alternative forms."
  • "Do not communicate with the media without permission." The NLRB opined that employers cannot prohibit employees from contacting the press, blogging, or contacting government agencies, because employees "have a protected right to seek help from third parties regarding their working conditions." However, the NLRB failed to distinguish between contact through social media or blogging about an issues, as opposed to seeking assistance through appropriate non-public channels.
  • "Do not harm the company." The NLRB stated that policies which require employees to avoid harming the image or integrity of the company are overbroad because they could "chill" an employee's right to criticize employer policies or the employer's treatment of its employees.
  • "Do not post to social media on company time." The NLRB disapproved of a policy which prohibited employees from using social media through the company resources or on company time. As justification, the NLRB stated that employees have the right to engage in Section 7 activities on the employer's premises during non-work time and in non-work areas. However, employers can prohibit employees from engaging in social media activity using company resources or when employees should be working.

What Can I Have in My Social Media Policy?

Although the NLRB has issued several sweeping statements finding certain prohibitions objectionable, the NLRB also found certain social media policy provisions acceptable:

  • "Employees must not disclose confidential information or trade secrets." Any such provision prohibiting disclosure of confidential information or trade secrets should include clear definitions of what constitutes confidential information or a trade secret. Without such a designation, the provision could unlawfully restrict an employee's Section 7 rights because an employee may not know what they cannot discuss.
  • "No inappropriate postings." The NLRB agreed that an employer could prohibit "inappropriate postings" as long as it was clear that the prohibition was limited to "discriminatory remarks, harassment, and fits of violence or similar inappropriate or unlawful conduct."


For the first time, the NLRB provided an example of an employer's social media policy which it found to be acceptable. Employers should be cautioned against accepting this policy in its entirety because it perfects a restrictive reading of the NLRA, may not be appropriate for all employers, and lacks several important provisions which have not been reviewed by the NLRB.

If you have any questions regarding this article, please contact your Davis & Kuelthau attorney.

 

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