On January 24, 2012, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued a new report concerning social media cases. The new report follows a previous report on the same subject that the NLRB published in August of 2011. The new report describes fourteen cases involving social-media related issues. The cases primarily focus on whether an employer’s social media policy was unlawfully overbroad or whether an employee was terminated for engaging in protected, concerted activity under the National Labor Relations Act (NLRA).
One of the notable aspects of the new report is its discussion of two policies which the NLRB determined did not violate employees’ rights under Section 7 of the NLRA. Section 7 of the NLRA protects employees’ rights to engage in form, join, or assist labor unions as well as to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See 29 U.S.C. § 157. Social media policies may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”
Lawful Social Media Policy Example No. 1: The first policy that the NLRB found did not violate the NLRA 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.” The NLRB determined that this rule did not violate Section 7 because it appeared in a list of “plainly egregious conduct” and there was no evidence it had been applied to discipline protected activity.
The NLRB noted that the same employer’s previous social media policy did violate the NLRA. The previous policy prohibited “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.” The NLRB determined that this policy was overbroad because of its use of “broad terms” such as “defamatory,” which could arguably apply to protected criticism of the employer’s labor policies or treatment of employees. The NLRB also found that the employer used the policy to discipline employees for protected conduct.
The primary difference between the employer’s lawful policy and its previous, unlawful policy appears to be that the lawful policy described prohibited conduct with greater specificity and referred to the employer’s other workplace policies.
Lawful Social Media Policy Example No. 2: The second policy that the NLRB found did not violate Section 7 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;
- Employees were prohibited from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients;
- Employees were prohibited from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations; and
- Employees were prohibited from promoting the employer’s products or services online due to Federal Trade Commission (FTC) regulations.
Because of the specific examples provided in this policy, the NLRB found that employees would understand that the confidentiality restrictions related only to communications that implicate security regulations, the confidentiality of the employer’s customers, or embargoed information. With respect to the restrictions on promotional content, the NLRB held that “employees could not reasonably construe the rule to apply to their communications regarding working conditions, as they would not consider those communications to promote or advertise on behalf of the Employer.”
Takeaways: Determining whether a social media policy is overbroad in violation of the NLRA is highly dependent on context. The NLRB’s new report on social media shows that an employer’s policy is more likely to be found to be lawful if it describes prohibited conduct with specificity. Social media policies that refer to other workplace policies (e.g., anti-discrimination, anti-harassment, or confidentiality policies) or governing laws and regulations (e.g., FTC regulations) are also more likely to be upheld. As a final matter, it remains a good idea for employers to include limiting language in their social media policies to make clear that the policy does not prohibit the exercise of Section 7 rights.