NLRB Acting General Counsel Offers Guidance on Employer Social Media Policies
In the ever-changing world of social media, many employers have instituted social media policies that control or at least influence employee social media use. While these are crafted to avoid the risks associated with employee social media use, an overly broad social media policy may itself violate federal labor law.
Recently, Acting General Counsel of the National Labor Relations Board (“NLRB”) Lafe E. Solomon issued a new report on employees' social media use (“Social Media Report”), describing several social media policies and analyzing whether the policies unlawfully interfered with the rights of workers under the National Labor Relations Act (“NLRA”).
The Social Media Report is important for two reasons. First, the Social Media Report finds that several restrictions common to many social media policies – including a prohibition on sharing “confidential information” and a policy instructing employees not to “pick fights” – may violate federal labor law if they are not drafted carefully. Second, for the first time, the Social Media Report identifies a particular social media policy which the Acting General Counsel finds to comply with the NLRA.
Given the NLRB’s high level of activity in this area, we advise that employers review the Social Media Report carefully and consider implementing the policy the Acting General Counsel has approved. A copy of the approved policy is available here. The Social Media Report represents the first tangible guidance from the NLRB, and implementing the approved policy involves the least amount of risk of violating federal labor law. While the Social Media Report is not as authoritative as an actual case decision by the NLRB, it represents a strong signal of how the NLRB will treat social media policies.
For those who have already implemented a social media policy – even if the policy is one that we previously drafted – there is no guarantee that your current policy is lawful in light of this recent guidance. Accordingly, we strongly recommend that you have us review your policy and consider implementing a policy similar to the policy approved in the Social Media Report. We can help you tailor the policy to the needs of your business and help you minimize the risk that the NLRB will take the position that your policy unlawfully interferes with the rights of your employees under the NLRA.
Provided below is a brief summary of the Social Media Report:
Overbroad Social Media Policies Are Unlawful under the NLRA
The Social Media Report confirmed that overbroad company rules and policies violate the NLRA where employees would reasonably interpret them as limiting their exercise of rights guaranteed by federal labor law.
The Social Media Report cited the following policies as overbroad and unlawful:
- “You also need to protect confidential information when you communicate it. . . . Never discuss confidential information at home or in public areas.”
- “If you engage in a discussion related to [Employer], . . . you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site.” Nonpublic information was defined to include information “related to” the company's financial performance, as well as personal information about employees.
- “Don't pick fights” and reminding employees to communicate in a “professional tone” without making “objectionable or inflammatory” comments.
Even though some of these policies had a “savings clause,” stating that they were not intended to cover rights protected by the NLRA, the Social Media Report still considered the policies unlawful.
Carefully Drawn Restrictions Are Lawful
The Social Media Report did deem some restrictions permissible, particularly when the policy contains specific examples of prohibited conduct, so that employees understand that the policy does not prohibit protected activity under the NLRA.
For example, one prohibition against “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace . . . even if it is done after hours, from home and on home computers,” was considered lawful because the rule gave employees an illustrative list of prohibited acts, such as bullying and discrimination.
Likewise, while a specific policy instructing employees to be “fair and courteous” when posting online material could be overly broad, the Social Media Report concluded that the policy provided sufficient examples of plainly egregious conduct, so that employees would not reasonably construe the rule to prohibit protected conduct.
The Social Media Report specifically commented on Wal-Mart’s revised social media policy, finding it lawful in its entirety. The approved policy included a prohibition on violating financial disclosure laws. For our health care clients, a similar prohibition on conduct that would violate federal and state patient privacy laws would likewise be lawful.
We will continue to monitor and report on developments in this area.