The increased use of social media in our society has raised significant issues in the employment arena causing employers to develop policies attempting to limit their employees social media use. As a result of increased litigation in this area, the National Labor Relations Board (“NLRB” or “Board”), on May 30, 2012, announced the publication of a third report to supplement its two earlier reports on this topic.
The main focus of the two earlier reports was to notify employers that their social media policies should not be so all encompassing as to ban employee activity protected under federal labor law. An overly broad policy can potentially violate Section 7 of the National Labor Relations Act (“NLRA” or “Act”) which protects an employee’s Section 8(a)(1) right to engage in concerted activities for the purpose of mutual aid and protection. This caveat applies equally to non-union employers whose policies might include such language as prohibiting employees from discussing their wages and/or other terms and conditions of their employment with others as well as other unlawful prohibitions.
The recently issued third report stems from the NLRB’s review of seven cases involving social media use employment policies. Its preliminary analysis centered on whether the policy, as written, would “reasonably tend to chill employees” in the exercise of their rights under the NLRA by specifically restricting those rights. But the analysis does not end there. Absent such an explicit restriction of the employees’ Section 8(a)(1) rights, the Board focused on the following considerations:
1. Whether an employee would reasonably conclude that the policy does prohibit protected activities;
2. Whether the employer adopted the policy in response to union activity; and
3. Whether the employer has applied the policy in such a manner as to restrict protected activity.
Among the plethora of provisions the Board deemed to be unlawful in six of the seven policies it reviewed are:
• a provision including a general condemnation of posting “[o]ffensive, demeaning, abusive or inappropriate remarks on-line.”
Why? Because it is overly broad and might potentially restrict an employee’s protected right to criticize its employer’s treatment of employees.
• a provision requiring to make certain that information shared about the company is completely accurate, not misleading and non-public.
Why? Because such a restriction would be reasonably interpreted to apply to discussions about a criticism of the employers treatment of its employees.
• a provision preventing an employee from commenting on any legal matters, including pending litigation or disputes.
Why? Because if specifically restricts employees from discussing the protected subject of potential claims against the employer.
• a provision instructing employees not to share confidential information with co-workers unless they need the information to do their jobs.
Why? Because employees would construe that provision as prohibiting them from discussing information regarding the terms and conditions of employment.
In a similar vein, the Board found a policy provision threatening discharge or criminal prosecution of an employee for failure to report unauthorized access or misuse of confidential information to be unlawful as well.
Finally, the Board posited further that even a “savings clause” in the policy stating that it would not be construed and applied in a manner that improperly interferes with employees’ rights under the Act will not pass muster.
According to the Board, a policy with provisions that clarifies and restricts the scope of its provisions by including examples of clearly illegal and unprotected conduct will likely be considered to be a lawful policy.
In light of the fact that these caveats apply to union as well as non-union employers, we strongly urge employers to review their social media policies to determine whether revisions are warranted in order to be in compliance with the NLRB’s enunciated standards.