NLRB Issues Third Report on Employer Social Media Policies: How Helpful Is it?
May 31, 2012
By Tamara E. Russell

On May 30th, the Acting General Counsel of the National Labor Relations Board ("NLRB") issued a third report on social media with "specific examples of various employer policies and rules" that were deemed either lawful or unlawful in an effort to provide employers with "additional guidance." A copy of the report can be found here.

Although the report does provide "additional guidance" by way of examples of specific "unlawful" and "lawful" social media policy provisions, it says very little that is new in terms of how the NLRB views and will interpret social media policies. In fact, previous "guidance" issued by the NLRB Acting General Counsel on this subject in August 2011 and January 2012 are in many cases simply restated in the May 2012 report. What is new in the May 2012 report, however, is the inclusion of a policy that the NLRB concluded was lawful under the National Labor Relations Act ("NLRA"), and one page of reasons why the NLRB reached the conclusions that it did about that policy.

Provisions Prohibiting Discussions of Terms and Conditions of Employment

Generally speaking, the following social media policy provisions included either undefined phrases (such as "non-public information" or "confidential") or had an over-reaching feel. All of them (according to the NLRB) could be interpreted by employees to mean that they could not talk about the terms and conditions of their employment or that of their co-workers (a prohibited act under the NLRA). Some of the policy language that the NLRB concluded was overbroad and unlawful under the NLRA include:

• "Don't release confidential guest [customer], team member [co-worker] or company information . . . ."
• "You should never share confidential information with another team member [co-worker] unless they have a need to know the information to do their job. . . .Don't have conversations regarding confidential information in the Breakroom or in any other open area." (Query whether a narrowly worded definition of "confidential information" would have eliminated the NLRB's concerns. The report is silent as to whether this particular employer used a narrow definition, or any definition at all.)
• "If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer], and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site."
• "When in doubt about whether the information you are considering sharing falls into one of the [prohibited confidential] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it's a good idea . . ."

Provisions That Prohibit "Protected Criticisms"

The NLRB concluded that the following provisions were unlawful, due to the fact that they "proscribe[ ] a broad spectrum of communications that would include protected criticisms of the Employers' labor policies or treatment of employees":

• "TREAT EVERYONE WITH RESPECT. Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional."
• "Think carefully about ?friending' co-workers . . .on external social media sites. Communications with co-workers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your personal social media channels could become a concern in the workplace."

Other Notable "Unlawful" Provisions

• "Don't comment on any legal matters, including pending litigation or disputes." Per the NLRB, employees must be allowed to discuss the protected subject of "potential claims against the Employer."
• "Adopt a friendly tone when engaging online. Don't pick fights. . . .Communicate in a professional tone [and do not discuss] topics that may be considered objectionable or inflammatory—such as politics and religion." This language is unlawful because, according to the NLRB, discussions about "working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion."
• "You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers." Although the NLRB concluded that it was acceptable for employers to suggest that employees try to work out concerns via internal procedures, "telling employees that they should use internal resources rather than airing their grievances online . . .this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums."
• "Unless you receive prior authorization from the Corporate Communications Department to correspond with members of the media or press regarding [Employer] or its business activities, you must direct inquiries to the Corporate Communications Department." Per the NLRB, this provision "goes too far" because employees "have a protected right to seek help from third parties regarding their working conditions." Similarly, provisions that required employees to seek permission from, or provide notification to, the General Counsel or other managerial employee before conversing with government agencies were considered by the NLRB to be unlawful: Employees must be allowed to "converse with [NLRB] agents or otherwise concertedly seek the help of government agencies regarding working conditions, or respond to inquiries from government agencies regarding the same."

NLRB Positions That Are Unchanged From the January 2012 Report

Frustratingly, the NRLB did not back down from its conclusion in its January 2012 report that employee non-commercial use of an employer's logo or trademarks while engaging in NLRA-protected activities is not unlawful. As noted in the May 2012 report, "[a]lthough the Employer has a proprietary interest in its trademarks, including its logo if trademarked . . .employees' non-commercial use of the Employer's logo or trademarks while engaging in Section 7 activities would not infringe on that interest." Thus, and contrary to widely accepted and longstanding trademark infringement law, the NLRB believes that employees can use employer-trademarked logos and other company identifiers as they see fit, and without consequence.

Similarly, the NLRB continues to refuse to acknowledge or give weight to disclaimers (or "savings clauses") in social media policies that state something to the effect of, "Nothing in this policy is intended to interfere with employees' rights under the NLRA, and any conflicts between this policy and applicable law will be decided in favor of the law." Such language, according to the May 2012 report, "does not cure the ambiguities in the policy's overbroad rules."

Key Takeaways for Employers

Although the NLRB's latest report and the statements therein are not law, per se, the report is yet another example of how the current NLRB will analyze any social media policy that comes its way. To date, however, no court has yet had the opportunity to consider whether the NLRB's interpretations of the NLRA in conjunction with employers' social media policies are consistent or contrary to federal labor law.

With respect to the sample "lawful" social media policy provided in the report, employers should be mindful of a couple of points before they cut-and-paste it into their employee handbooks: (1) It reflects a liberal interpretation of the NLRA; (2) It may not be appropriate for all employers; and (3) It does not include some helpful social media policy provisions that have been upheld in NLRB proceedings before administrative law judges.

The sample policy, however, like the NLRB report, does provide employers with some new guidance about how to craft and update social media policies. If they have not done so in the last six months, employers should consider reviewing their social media policies to ensure continuing compliance with the NLRA and other employment laws. Such policies, however, should also be reviewed to ensure that the employer's lawful objectives behind such policies are not watered down by the spate of NLRB "guidance" issued in the last 6-10 months. Employers who have not yet implemented social media policies should consult with counsel about the advisability of doing so.

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