The National Labor Relations Board Acting General Counsel Lafe E. Solomon issued his third report on employees’ social media use on May 30. We previously blogged about the first report (see NLRB Issues Guidance on Social Media Policies) and several other NLRB cases involving social media.
This recent report focuses on the lawfulness of several companies’ social media policies under Section 7 of the National Labor Relations Act, which prohibits employers from restricting an employee’s right 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. A workplace rule that explicitly restricts Section 7 rights is unlawful. If a rule does not explicitly restrict Section 7 rights, it will still be unlawful if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
Acting General Counsel’s Dont’s:
1) Provisions that prohibit postings about terms and conditions employment;
2) Provisions that prohibit discussions of the employer’s non-public information, confidential information and legal matters (without further clarification of the meaning of these terms);
3) Provisions that instruct employees to make sure their postings are “completely accurate and not misleading”;
4) Provisions that prohibit postings detrimental, disparaging or defamatory to the employer without specific examples that would not reach protected communications about working conditions;
5) Provisions that prohibit discussions of potential claims against the employer;
6) Provisions that prohibit postings containing objectionable or inflammatory topics such as about politics and religion;
7) Provisions that require employees to secure permission prior to posting photos, music, videos, quotes and personal information of others;
8) Provisions discouraging employees from “friending” co-workers;
9) Provisions requiring employees to resolve concerns about work internally (“by speaking with co-workers, supervisors, or managers”) rather than “airing grievances online”;
10) Provisions requiring employees to receive prior authorization from the employer to correspond with members of the media or press regarding the employer or its business activities;
11) Provisions requiring employees to seek permission from the employer before conversing with government agencies;
12) Provisions that prohibit employees from using the employer’s logo or trademarks for non-commercial use; and
13) “Savings clauses” that broadly state, “[n]othing in this policy is intended to interfere with employee’s rights under the NLRA, and any conflicts between this policy and applicable law will be decided in favor of the law.”
Acting General Counsel’s Do’s:
1) Provisions prohibiting “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct”;
2) Provisions prohibiting postings that “could be viewed as malicious, obscene, threatening or intimidating” or “contribute to a hostile work environment on the basis of…any…status protected by law or company policy”;
3) Provisions that suggest and not encourage employees to resolve work-related complaints internally rather than posting complaints online;
4) Provisions preventing the dissemination of trade secrets and confidential information with examples of prohibited disclosures (i.e., products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that they do not reach protected communications about working conditions; and
5) A complete social media policy (found on pages 22-24 of the third report) that passed muster.
It is important to note that the Acting General Counsel’s reports do not constitute binding NLRB precedent but, rather, reflect his position for purposes of determining whether an unfair labor practice charge should be prosecuted by the NLRB. Courts may take a different view on these issues and permit restrictions the NLRB finds objectionable.