On Wednesday, May 30, 2012, the National Labor Relations Board issued its third Operations Memo to its Regional Offices providing additional guidance for employers on social media in the workplace. Two prior guidance memos were issued in August, 2011 and January, 2012 and each focused on specific cases of violations. The latest guidance is focused on specific social media policies reviewed by the Board. This latest guidance is likely to be the most controversial guidance to date. Overall, the Board is indicating that it is taking an extremely expansive view of what is considered permissible conduct. Employers should evaluate their social media policies based on this latest guidance.
Generally, the Board takes the position that than an employer violates Section 8(a)(1) of the Act when it maintains a work rule if that rule, “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). The meaning of the phrase “would reasonably tend to chill” is a significant issue for employers and the Board’s recent action stretches that idea to its breaking point. In most cases, an employer will not have a rule that expressly prohibits rights under Section 7 of the Act. Click here for a recent article on Section 7 Rights in the workplace.
Employee use of social media in the workplace continues to increase by the day. Many employers are developing social media policies to address this conduct, and the Board is taking the approach that many social media policies are overly broad and unlawful. This most recent memo is intended to provide guidance for employers on the portions of policies which the Board finds problematic. Thus, Board looks at the policy to determine if “employees would reasonably construe the language to prohibit Section 7 activity.” Again, the meaning of this phrase is subject to significant interpretation. However, you can be sure that if the rule is ambiguous in any way or contains no language which makes it clear that the rule does not restrict an employee’s rights under Section 7, the rule is likely to be viewed as unlawful.
In its latest guidance, the Board identifies several problem policies it deemed as unlawful. They included:
- Prohibiting the release of “confidential information” or “non-public information” generally;
- Requiring posts on social media websites to be “completely accurate and not misleading;
- Requiring an employee to get permission from the employer before posting online;
- Prohibiting the posting of media or personal information of others without the owner’s permission or using the employer’s logo or trademarks;
- Prohibiting generally “disparaging” or “defamatory” remarks as well as “offensive, demeaning, abusive or inappropriate remarks”;
- Requiring employees to think carefully about friending co-workers;
- Requiring employees to report “unusual or inappropriate internal social media activity”;
- Prohibiting employees from commenting on pending legal matters;
- Prohibiting employees from posting on topics that are objectionable or inflammatory;
- Encouraging employees to resolve concerns through internal means rather than posting complaints online;
- Prohibiting posts that “may harm the image and integrity of the company”;
- Prohibiting any and all communications to the media or requiring prior authorization before doing so.
The Board did provide an example of a sample social media policy that would pass muster. Among the provisions that the Board felt were lawful included:
- Prohibiting disclosure of company information not related to the employees (or their terms and conditions of work);
- Requiring employees to respect copyright and intellectual property laws;
- Stating employees should use their best judgment and exercise personal responsibility;
- Prohibiting posting anything in the employer’s name without prior authorization;
- Requiring employees to expressly state that the postings about the employer’s products or services are the employee’s position and not the employer’s position.
Many employers may be tempted to throw up their hands in disgust and suggest that the Board has lost its way. Until the courts begin interpreting the Board’s decisions, we are stuck with these interpretations, and Regional Offices throughout the United States will be using these in investigations going forward. For now, assume that a rule that does not specifically limit itself or could possibly be argued to chill an employee’s willingness to spout off about his or her workplace is likely to be viewed with suspicion. Tread lightly as you review your policies and contact Spencer Fane to assist you in this process.