NLRB Report on Social Media Cases Provides Guidance for Employers on Social Media Policies

The National Labor Relations Board’s Acting General Counsel recently issued a report and press release summarizing the outcomes of recent NLRB cases involving employees’ use of social media and the legality of employers’ social media policies. Among the cases discussed in the report are several in which the Board found that provisions of employers’ social media policies violated Section 8(a)(1) of the National Labor Relations Act, which prohibits work rules that would “reasonably tend to chill employees in the exercise of their Section 7 rights” to engage in “concerted activities” for the purpose of “mutual aid or protection.”

Although the NLRB report does not pronounce any new or specific rules for employers to follow in drafting social media policies, it suggests that to avoid running afoul of Section 8(a)(1), social media policies should be narrowly tailored so as not to prohibit “concerted activity” via social media, such as online discussion among coworkers regarding terms and conditions of employment. Employers should be mindful that union and non-union employees alike are covered by the NLRA, and thus the Board’s recent rulings on social media policies are applicable to virtually all employers.

The report specifically discussed Board rulings that the following social media policy provisions were overly broad and violated Section 8(a)(1):

• Policy prohibiting the use of social media to post pictures depicting the company in any way, such as pictures containing the company uniform or logo.
• Policy prohibiting employees “making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors.”
• Policy barring employee use of social media to engage “in inappropriate discussions about the company, management, and/or coworkers.”
• Policy that prohibited employees from using social media in a manner that would: (1) “ violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity,” (2) constitute “embarrassment, harassment or defamation of the [employer] or any … employee, officer, board member, representative, or staff member,” or (3) “lack truthfulness or that might damage the reputation or goodwill of the [employer], its staff, or employees.”
• Policy barring employees from using social media to “talk about company business,” post “anything that they would not want their manager or supervisor to see or that would put their job in jeopardy,” disclose “inappropriate or sensitive information” about the employer, or post “pictures or comments involving the company or its employees that could be construed as inappropriate.”
• Policies prohibiting employees from using the company’s name, address or other information in their personal online profiles, or from revealing information regarding coworkers, company clients, partners or customers without their consent.

In light of these NLRB rulings, employers should reexamine their social media policies (or consider adopting one), keeping in mind the following best practices.

• A social media policy should be clear and understandable to the average employee. The NLRB’s rulings have in large part turned on the ambiguities of social media policies, and the possibility that employees may misunderstand the policies to bar protected activities.
• A social media policy must not be overbroad. Policies should be narrowly drawn to address the employer’s legitimate policy objectives (for example, preventing the disclosure of the company’s proprietary information via social media or restricting the use of social media to engage in harassing conduct that would violate the company’s anti-discrimination and harassment policies).
• To put employees on notice of a social media policy’s coverage, the policy should include examples of prohibited conduct and/or definitions of terms that could be misconstrued by employees as barring protected activity.
• A social media policy should include limiting language advising employees that the policy does not apply to activities protected by Section 7 of the NLRA.

In light of the continuous evolution of social media technology and the law in this area, employers should review their social media policies with employment counsel periodically to ensure that the policy language complies with current law and is consistent with the state of technology. To discuss your company’s policy needs, please contact any attorney in the Gibbons Employment & Labor Law Department.