On May 30, 2012, the Office of the General Counsel of the National Labor Relations Board (NLRB) issued its third report on social media cases brought before the agency. Previous reports were issued in August 2011 and January 2012. The third report focuses exclusively on employer policies covering issues such as the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property and contact with the media and government agencies.
The report summarizes the office of the General Counsel’s opinion on seven recently filed unfair labor practice charges under the National Labor Relations Act (NLRA). The NLRA protects specific employee rights, including the right to discuss wages and working conditions with co-workers. In six of the cases, at least some provision of the employer’s policy was found to be overbroad or to have an unlawful chilling effect on the exercise of employees rights. Some key highlights of the report include:
- Confidential Information. Provisions instructing employees not to “release confidential guest, team member or company information,” not to share confidential information with co-workers unless necessary to do their job, and not to have discussions regarding confidential information in certain places were unlawful, as they would reasonably be interpreted as prohibiting protected activities such as discussing conditions of employment. Similarly, a rule prohibiting disclosure of personal information about employees was unlawful because it would reasonably be construed to include information about wages and working conditions.
- Requiring Employer Permission. A rule requiring employees to secure permission from the employer before posting information was unlawful. However, requiring employees to obtain prior authorization before posting something in the employer’s name or that could be attributed to the employer was lawful.
- Employee Opinions. A policy instructing employees to make sure any social media posts are “completely accurate and not misleading” would reasonably be interpreted to apply to discussions about, or criticisms of, the employer’s labor policies and its treatment of employees, which are protected by the NLRA unless maliciously false. Likewise, directing employees to avoid topics that are “objectionable and inflammatory” would reasonably be construed to prohibit protected “robust but protected discussions about working conditions or unionism.” Provisions warning employees to “avoid harming the image and integrity of the company” and prohibiting employees from expressing personal opinions to the public regarding “the workplace, work satisfaction or dissatisfaction, wages hour or work conditions” were also unlawfully overbroad.
- Savings Clauses. A ’savings clause’ instructing that the policy should not be interpreted or construed to interfere with employee rights under the NLRA did not cure the otherwise unlawful provisions.
- Bullying. A provision prohibiting “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace” even if done from home and on home computers was lawful.
- Media and Government Contact. An employer rule that prohibits any employee communication to the media or requires prior authorization for such communications was unlawfully overbroad. Similarly, an employer could not prohibit an employees’ protected right to speak with NLRB agents, concertedly seek the help of government agencies regarding working conditions, or respond to inquiries from government agencies.
One policy was found to lawful and unambiguous “because it provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit [protected] activity.” For instance, the policy’s direction to be “fair and courteous,” which might otherwise be seen as vague, was lawful because it also provides specific examples of plainly egregious conduct so that employees would not construe the policy to prohibit any protected activity. The report both attaches the lawful policy and quotes the unlawful portions of other policies, with the intent of providing guidance through specific examples.
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This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.