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April 24, 2014

National Labor Relations Board’s Advice Memorandum to Giant Foods LLC: A Giant Shock to Employers, cont.

I informed readers on Monday that the NLRB recently publicly released its Advice Memorandum to Giant Foods LLC. The company’s social media policy contained provisions that prevented employees from sharing confidential or non-public information, using the company’s logo or trademarks or filming the company premises without prior approval.

The NLRB found that the provision prohibiting employees from posting information that could be deemed “confidential” or “non-public” is unlawful because “non-public” is a vague term which employees could reasonably construe to include working conditions and “confidential” could reasonably be interpreted to include terms and conditions of employment.

Regarding an employer’s legitimate interest in protecting his logo, trademark, or graphics, the Memorandum stated: “Although the employer has a proprietary interest in its trademarks, including its logo if trademarked, employees’ use of its name, logo, or other trademark while engaging in Section 7 activity would not infringe on that interest.” The Memorandum illustrated a scenario in which an employee posted picket signs containing the employer logo.

As to the provision prohibiting employees from photographing or videotaping the employer’s premises, the Memorandum stated: “…a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos…”.

Despite the NLRB’s Advice Memorandum, employers will understandably continue to draft social media policies limiting employees’ sharing of confidential information, use of proprietary images, or filming of workplace premises. If you are going to include policy provisions similar to Giant Foods LLC’s, I offer the following advice:

  • Make every attempt to carefully define “confidential” or “non-public” information, clearly stating that working conditions or terms of employment are not within these categories.

  • Prohibit workplace photos and videos only in work areas where confidential or privacy interests are a real concern and provide specific examples of banned areas. For example, “No photographing or filming of the plant’s proprietary conveyer belt process.”

  • Limit the commercial use of your name, logo, and trademark by employees, without prior authorization.

It should also be noted that Giant Foods LLC policy had the following savings clause: “Please note that the company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.” The Advice Memorandum made clear that savings clauses such as these do not cure otherwise unlawful policy provisions.

The NLRB’s Advice Memorandum to employers seriously downgrades employers’ appropriate and reasonable privacy interests. Employer policies routinely prevented employees from sharing confidential information with non-employees long before the advent of social media. The NLRB memorandum seems to be long on speculative scenarios, but short on common sense. It is going to take time for employers, and the NLRB, to reach a happy-medium for social media policies.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

Amy D. Cubbage, Commercial Litigation Attorney, McBrayer Law Firm
Of Counsel

Amy D. Cubbage practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. She also has experience in litigating and counseling clients with respect to energy and environmental matters, including cases involving CERCLA, RCRA, OSHA, and...

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