NLRB RELEASES THIRD MEMO ANALYZING THE LEGALITY OF EMPLOYER SOCIAL MEDIA POLICIES

Most employers would not think that there is anything unlawful about telling their employees to refrain from making “offensive, demeaning, abusive or inappropriate remarks” in social media.  Similarly, most employers would think that instructing employees not to “reveal non-public company information on any public site” is a smart thing to do.  However, the National Labor Relations Board, in its most recent memosummarizing its recent social media cases, found these and other statements by employers to be unlawful.

The NLRB’s concern is that such policies might lead employees to believe that they will be terminated if they engage in protected activity, such as organizing a union or complaining about working conditions.  The NLRB’s basic rule is that unless a company’s social media policy explicitly restricts Section 7 protected activities, it will only 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.  While this rule is easily stated, as the above examples suggest, its application in specific cases is often counterintuitive.  Even the most innocently intended statements may land an employer in hot water with the NLRB.

In the first of the examples above, the NLRB found a social media policy unlawful since it exhorted employees not to make “offensive, demeaning, abusive or inappropriate remarks” online.  The NLRB said that an employee could reasonably construe the policy as proscribing a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees.

In the second example, the NLRB found that a prohibition against revealing non-public company information on any public site encompasses topics related to Section 7 activities, such as financial performance of the company and employee compensation.

What can employers do to help avoid the possibility of being found in violation of the law?  Here are a few tips:

  • Avoid overbroad social media policies.  Write the social media policy in the narrowest manner possible.
  • Whenever possible, use specific examples of the type of behavior that would violate the company’s social media policy and be sure that these examples do not suggest a limitation on any protected activity.
  • Simple caveats that the social media policy will not be construed as violating Section 7 of the National Labor Relations Act are ineffective.
  • When drafting social media policies, ask yourself:  “Is there any way that this might be construed as limiting an employee’s ability to organize or complain about working conditions?”  If so, narrow the policy so that it cannot be construed as restricting protected activity.

Although much of the NLRB’s concerns about social media policy are implausible, the NLRB’s recent focus on social media policies is something that employers must carefully consider.  Since the NLRB’s reasoning is not always intuitive, it is wise to have your company’s social media policies reviewed by an attorney before the NLRB comes calling.