By Brian Ryoo
On May 30, National Labor Relations Board (“NLRB”) Acting General Counsel Lafe E. Solomon issued his third report on employer social media issues, focusing on “overbroad” employer social media policies. The report expresses concern about “ambiguous [policies] that contain no limiting language or context” and give employees insufficient notice of their protected rights under the National Labor Relations Act (“NLRA”). The report describes several recent cases in which the agency found employer social media policies to be unlawful, and it appends an example of a social media policy that is lawful from the NLRB perspective.
Section 7 of the NLRA protects certain employee rights, such as the right to self-organization, to form, join, or assist labor organizations, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. This protection applies to employees at almost all private employers, whether they have wage or non-supervisory, salaried employees. NLRB case law interprets the Act to prohibit any work rule that “would reasonably tend to chill employees in the exercise of their Section 7 rights”― a prohibition that it has found implicated by overbroad employer social media policies.
Solomon’s report indicates that NLRB enforcement activity has focused on circumstances in which employers had issued a blanket ban on a broad spectrum of social media activities without including limiting language or clarifying that the rules do not restrict rights protected under Section 7. Rules that the NLRB will consider lawful “clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity.”
The social media policies prohibited by the NLRB included such provisions as:
- Blanket prohibitions on the release of “confidential company information” or “non-public information.” The NLRB found that such generalized statements would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their terms and conditions of employment, such as wages and working conditions.
- A prohibition on employees’ posting photos and videos of others without permission and from using the employer’s logos and trademarks. The NLRB was concerned that employees would reasonably interpret those provisions as proscribing the use of photos and videos of employees engaging in Section 7 activities, including photos of picket signs containing the employer’s logo.
- A general prohibition on the disclosure of personal information about other employees. The NLRB stated that, without further clarification, employees would reasonably interpret the rule to include information about wages and working conditions.
- Instruction that employees report unusual social media activity or that they obtain permission from the corporate Communications or Legal departments when in doubt whether the activity is protected. The NLRB held that any policy that requires employees to obtain their employer’s permission as a precondition to exercising Section 7 rights was unlawful.
- A prohibition on employees’ commenting on “any legal matters, including pending litigation or disputes.” The NLRB found that the rule specifically restricts employees from discussing employment matters in potential claims against their employer.
- Instruction that employees “[t]hink carefully about ‘friending’ co-workers.” Such instruction is unlawfully broad because, in addition to having no limiting language, it would discourage communications among co-workers and necessarily interfere with Section 7 activity.
- Guidelines on adopting “a warm and friendly tone” when engaging online and cautioning employees not to “pick fights” and avoid “topics that may be considered objectionable or inflammatory — such as politics and religion.” The NLRB found such rules overbroad because, without further clarification, employees would reasonably construe them as restricting all types of online discussions that could become heated or controversial, including discussions about working conditions or union activities.
- Prohibitions on making “disparaging or defamatory” comments on social media or public expressions of “work satisfaction or dissatisfaction, wage hours or work conditions.” The NLRB found that employees would reasonably interpret this rule to apply to protected criticism of their employer.
In addition, the report indicates that a “savings clause” ― a common feature in many employers’ policies that states in general terms that they will “not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act” ― does not cure otherwise unlawful provisions if it does not explain in plain terms understandable to a lay person what activities are protected. The NLRB explained that “employees would not understand from this disclaimer that protected activities [under Section 7 of the NLRA] are in fact permitted.”
The report includes one employer’s social media policy that the NLRB found entirely lawful because “it provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.” Notably, the lawful policy does not explicitly clarify what activities are allowed under Section 7. Instead, the policy provides sufficient context by including examples of “plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct.”
Prior NLRB reports discussed the lawfulness of employer policies concerning Facebook, Twitter, and YouTube and policies that prohibit employees from making critical or “disparaging” remarks about their employers on social media.
Please feel free to contact Eric Bosset for more information.