Over the past year, the National Labor Relations Board (“NLRB”) has issued three reports on the same topic, social media policies. Social media policies have drawn the attention of a fairly aggressive NLRB. While the goal of the latest memorandum from the NLRB’s acting general counsel may have been an attempt to clarify for employers the rules of the terrain and what can be included in a social media policy without violating the National Labor Relations Act (“NLRA”), the latest memorandum is at times inconsistent and will leave most employers wondering whether it is even possible to draft a social media policy that would not run afoul of the NLRB’s guidelines.
The latest memorandum from the NLRB reviews seven cases involving employer social media policies. The NLRB found that all but one of them contained violations of the NLRA. The NLRA was passed and signed into law nearly 80 years ago – well before the advent of social media. The Act’s focus is on protecting employee’s rights to unionize and join in collective bargaining. The Act also created the NLRB, whose members are appointed by the President, to enforce the Act.
The following specific social media policy provisions were found to be in violation of employee’s protected, concerted activity rights under the NLRA:
- A policy prohibiting the release of confidential guest, team member or company information.
- A policy prohibiting employees from sharing confidential information with co-workers unless necessary to do their job.
- A policy prohibiting discussions regarding confidential information in the company break room.
- A policy warning employees that they may be discharged or prosecuted for failing to report unauthorized access to or misuse of confidential company information.
- A company policy prohibiting employees from posting photos, music, videos and personal information of others without obtaining the owner’s permission and ensuring that the content can be legally shared.
- A policy prohibiting the use of company logos and trademarks on social media sites.
- An instruction to employees that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.”
After considering these social media policy provisions the NLRB found unlawful, employers and those of us who advise them are left scratching our heads and wondering whether the NLRB would find any meaningful language in a social media policy to be lawful.
We do know from the NLRB’s latest memorandum that an employer can include in its social media policy language urging employees to respect copyright and other intellectual property laws when using social media. We also know that an employer may include language prohibiting employees from posting anything on the internet in a manner that could reasonably be attributed to the employer.
While there is a balancing of interests between an employer’s legitimate concerns regarding social media and the employee’s rights to engage in protected, concerted activity, the NLRB’s position on social media policies makes it very difficult for employers to know what their social media policies can contain. Ultimately, the courts are going to have to provide clarification on the topic of parameters of legitimate social media policies in light of the NLRA. The general counsel’s memorandum gives an example of a social media policy that it found to be lawful, but unlike discrimination and harassment policies, social media policies are not and cannot be one-size fits all and must be narrowly and specifically tailored to the nature of the business in which the employer engages. If you have a social media policy, you should have it reviewed in light of the NLRB’s latest “guidance.” If you do not currently have a social media policy, be very cautious about a one-size fits all approach.