National Labor Relations Board Review of Social Media Policies

In a memorandum released in 2012, the National Labor Relations Board (“NLRB”) explained its position on various social media policies after having reviewed the policies of seven employers, finding six of them to contain unlawful provisions. The rules cited by the NLRB apply to private sector employers and employees, regardless of whether or not employees are members of a labor union. Based upon this memorandum by NLRB, a recent Employment Alert has suggested that employers review social media and other confidentiality, media contact, and employee conduct policies, regardless of how recently those policies have been reviewed.

In particular, the NLRB suggested that provisions of employers’ social media policies could be overly broad and unlawful under Section 7 of the National Labor Relations Act (the “Act”), particularly to the extent that the policies discourage employees from exercising their rights under the Act, such as engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection. In particular, NLRB noted several categories of violations including confidentiality, content and permissions, videos, respect provisions, disparagement, seeking internal resolution, and reporting.

With respect to confidentiality, the NLRB noted that policies providing that employees may not release confidential company information or confidential information regarding guests or employee on social networking sites, without exempting Section 7 activity, unlawfully prevents employees from discussing wages and conditions of employment with third-parties and each other. Further, the NLRB stated that content and permissions provisions that required employees to disclose their name, employment status, and be “completely accurate” or to seek permission before making certain posts, was unlawful. The NLRB determined that such requirements were overly broad, as they could be interpreted to apply to discussions about an employer’s labor practices or treatment of employees that are protected under the Act unless the same are maliciously false. With respect to provisions on videos, the NLRB determined that an employer policy that prohibited employees from posting photos, music, videos, quotes and personal information of others without the owner’s permission, including employer logos and trademarks, could be interpreted to prevent the use of photos and videos of employees engaged in picketing or other Section 7 activities. Even provisions requiring that employees be respectful by prohibiting employees from using offensive, demeaning, abusive or inappropriate remarks was found to be unlawful, as NLRB noted that this could include communications of an employee criticizing an employer’s labor policies or treatment of employees. Because discussions about working conditions or union status may be heated or controversial but are protected, such provisions were found to be unlawful. Further, even encouraging employees to think carefully before “friending” coworkers on social media sites was found to be unlawful because it could unnecessarily interfere with Section 7 activity by discouraging communications. Similar reasoning was applied in determining that provisions banning disparaging comments could unreasonably constrict criticism of an employer’s labor policies or treatment of employees. Policies that suggested that employees should use internal resources rather than airing their grievances online was also found to have the potential effect of precluding or inhibiting employees from the protected Section 7 activity of seeking redress through alternative forums. Lastly, NLRB rejected those policy sections that required employees to disclose potential policy violations by other employees to their employers.

Because the National Labor Relations Act applies to most private sector employees regardless of their status as union members, you are encouraged to carefully review your employment policies in light of this recent memorandum by the NLRB. If you have questions about specific policies, you are encouraged to seek legal counsel.

Angela L. Gidley (former associate)

This messages is not an evaluation of the requirements or exemptions relating to any particular business and is not exhaustive of the requirements under law. If you are unsure of whether the rules described herein apply to you or your business or whether your employment policies may violate the Act, please contact legal counsel.