The National Labor Relations Board (“NLRB”) recently issued a memorandum (“memo”), offering guidance to employers in drafting social media policies concerning websites such as Facebook, Twitter, LinkedIn, and MySpace. This is the third memo that the NLRB has issued regarding social media policies. While employers seek to monitor and control the disclosure of their confidential and proprietary information on social media forums, the NLRB has struck down many employer policies by taking broad positions in protecting employee rights concerning the use of social media. Employers should be aware of the guidelines from the NLRB concerning social media and review their current policies and individual employment agreements to ensure compliance with the guidelines.
The NLRB memo, authored by the Acting General Counsel and dated May 30, 2012, discusses seven recent cases, six of which are concluded to contain social media provisions that are unlawful and overbroad under the National Labor Relations Act (“NLRA”) (29 U.S.C. §§ 151-169). The NLRB approved one social media policy in place at Wal-Mart. The complete policy can be found at the end of the memo as an example for employers going forward.
Section 7 of the NLRA gives employees the right to:
[S]elf-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, [and] the right to refrain from any or all such activities . . . .
29 U.S.C. § 157. The NLRB examines employer rules and their application to Section 7 activity to determine whether the rules interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7. If the rules are ambiguous and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, the NLRB generally holds that the rules are unlawful. In contrast, rules that 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, are not unlawful. In reviewing employer policies, the NLRB appears to be seeking specific policies that contain examples of conduct that is prohibited so that employees know how to proceed.
Unlawful Social Media Guidelines
The social media guidelines warn against several practices that were found to violate or chill the rights contained in Section 7 of the NLRA. Some specific provisions of employer policies (at companies such as Target Corp. and General Motors) were found to be unlawful including:
- Instructions to employees not to “release confidential guest, team member or company information.” This provision could reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves.
- Instructing employees not to share confidential information with coworkers unless they need the information to do their job; and not to have discussions regarding confidential information in the break room, at home, or in open areas and public places. This provision is overbroad because employees could construe it as prohibiting them from discussing information regarding their terms and conditions of employment.
- Instructing employees that they must be sure that their posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site.” This provision is overbroad and unlawful because it could reasonably be interpreted to apply to discussions about, or criticism of, the employer’s labor policies and its treatment of employees that would be protected by Section 7 of the NLRA so long as they are not maliciously false.
- Instructing employees not to post and to check with their employer when in doubt of whether their post would comply with the social media policy. This provision is unlawful because the NLRB consistently holds that any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the NLRA. See Brunswick Corp.,282 NLRB 794, 794-795 (1987).
- Prohibiting employees from posting photos, music, videos, company logos and trademarks, and quotes or personal information of others without obtaining permission first. The memo states that without further information in the policy, this provision is unlawful because it could be interpreted to restrict Section 7 activities such as posting photos of protest picket signs containing company logos. The memo noted that although employers have a proprietary interest in their trademarks, employees’ non-commercial uses of such trademarks while engaging in Section 7 activities would not infringe those rights.
- Instructing employees that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” or “[c]ommunications with coworkers . . . that would be inappropriate in the workplace are also inappropriate online.” The memo states that these provisions are too broad and could be interpreted to violate Section 7 rights.
- Instructing employees to “[t]hink carefully about ‘friending’ co-workers.” The memo states that this provision is overbroad because it could discourage communications among co-workers, interfering with Section 7 rights.
- Instructing employees to “[r]eport any unusual or inappropriate internal social media activity.” Employers may not encourage employees to report to management the union activities of other employees under the NLRA, because it may discourage employees from engaging in protected activities. See generally Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998).
- Instructing employees to “avoid harming the image and integrity of the company.” The memo states that this policy is unlawfully overbroad because employees would reasonably construe it to prohibit protected criticism of the employer’s labor policies.
Lawful Social Media Guidelines
The NLRB approved of some of the social media policy provisions because it determined that the provisions were not overbroad and they were specific so as not to inhibit employees’ Section 7 rights. Some of the lawful provisions include:
- Admonishing employees to “[d]evelop a healthy suspicion[,]”cautioning against being tricked into disclosing confidential information, and urging employees to “[b]e suspicious if asked to ignore identification procedures.”
- Prohibiting discussion by employees of specific information such as (1) safety performance evaluations of the employer systems (but not of the general safety of the workplace); and (2) secret, confidential, or attorney-client privileged information of the employer.
- Allowing employees to use copyrighted material in their online communications, but merely urging employees to respect copyright and other intellectual property laws.
- Stating that “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.”
- Prohibiting comments by employees that are represented to be made by or on behalf of the employer.
- Encouraging employees to be respectful in posting comments, complaints, photographs, and videos.
Application to Private Individual Employment Contracts
The social media guidance in the NLRB memo also applies to individual employment contracts for employees that are covered by the NLRA. Employers cannot enter into individual agreements with employees in which the employees give up their Section 7 rights. Therefore, employers should also be aware of terms in individual employment contracts that will be affected by the NLRB social media guidance policies, such as non-disclosure and confidentiality terms.
In an effort to comply with the NLRA, some employers have implemented a “saving clause” in their social media policies. An example savings clause could state:
National Labor Relations Act. This Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.
Such clauses, however, may not cure otherwise ambiguous or overbroad social media policies and the NLRB has sometimes determined that such policies are still unlawful.
The NLRB’s attention to social media policies in the last year reveals that the agency is concerned with protecting employee’s rights to discuss the terms and conditions of their employment and to protect other Section 7 rights under the NLRA. Employers should be careful not to restrict employee rights under the NLRA in their social media policies.
In light of the recent guidance from the NLRB on social media policies in the workplace, employers should:
- Be aware of the NLRB guidelines and become familiar with them;
- Update current social media and non-disclosure policies to comply with the NLRB guidance;
- If necessary, create and implement new social media policies to comply with the NLRB guidance that contain specific examples of prohibited social media activity; and
- Review individual employment contracts and update employer forms and offer letters as appropriate to comply with the NLRB guidance.
If you have questions about whether your current employee handbooks or policies comply with the recent NLRB social media guidance, or if you need help in drafting new social media policies, please contact any of the Trepanier MacGillis Battina P.A. employment law attorneys.
About the Author:
Minneapolis employment law attorney Kelly M. Dougherty practices extensively in the fields of employment law and business law. Kelly routinely assists employers with the drafting of employee handbooks and policies. Kelly may be reached at 612.455.0504 or firstname.lastname@example.org. Trepanier MacGillis Battina P.A. is a Minnesota employment law firm located in Minneapolis, Minnesota, with attorneys who routinely represent employers in employment matters, including drafting and reviewing employee handbooks for compliance with federal and Minnesota laws.
 See, e.g.,National Licorice Co. v. NLRB, 309 U.S. 350, 360 (1940) (holding that individual employment contracts that include a clause discouraging, if not forbidding, a discharged employee from presenting his grievance to the employer “through a labor organization or his chosen representatives, or in any way except personally” was unlawful and unenforceable); D.R. Horton Inc., 357 N.L.R.B. No. 184, 2012 WL 36274, at *4 (January 3, 2012) (“That this restriction on the exercise of Section 7 rights is imposed in the form of an agreement between the employee and the employer makes no difference. From its earliest days, the [NLRB], again with uniform judicial approval, has found unlawful employer-imposed, individual agreements that purport to restrict Section 7 rights . . . .”).