The NLRB Division of Advice recently released an Advice Memorandum that opined that an employer policy that prohibited employees from photographing or video recording the Company's premises, processes, operations, or products including confidential information without the Company's permission violated the National Labor Relations Act. This is a common handbook policy that many employers likely have in place. Although the Memorandum is not binding on the Board, it reflects the thinking of a majority on the Board. Employers in represented environments or who may face organizing may, in particular, want to carefully consider whether and under what circumstances to maintain such policies.

The General Counsel relied upon a comparison between Sullivan, Long & Hagerty andFlagstaff Med. Ctr. In Sullivan, Long & Hagerty, the Board concluded management failed to rehire an employee because of his union activities, which included carrying a tape recorder onto the jobsite in connection with a DOL investigation into union election irregularities. 303 N.L.R.B. 1007, 1013 (1991). Comparatively, in Flagstaff Med. Ctr., the Board concluded that a policy prohibiting the use of electronic equipment during work time including "[t]he use of cameras for recording images of patients and/or hospital equipment, property, or facilities is prohibited[,]" did not violate the Act. 357 N.L.R.B. No. 65, slip op. at 4–5. There, the Board found: The rule against photographing hospital property did not expressly restrict Section 7 activity; employees would not reasonably interpret the rule as restricting Section 7 activity; and there is no evidence suggesting the hospital enacted the rule in response to Section 7 activity or applied the rule to prohibit Section 7 activity. With respect to employee reasonableness, the Board noted the weighty privacy interest of hospital patients and the resulting interest the hospital had in preventing wrongful disclosure of individually identifiable health information, which included unauthorized photography (prohibited by the United States Code). The Board therefore concluded in Flagstaff that employees would reasonably interpret the hospital's rule as a legitimate means of protecting privacy rather than a tool to restrain protected activity.

With this as background, the General Counsel concluded in the Advice Memorandum that the portion of the employer's social media policy prohibiting employees from photographing or video recording the employer's property was unlawful. Specifically, the General Counsel opined that the policy's prohibition could reasonably be interpreted to prevent employees from using social media to communicate and share information regarding Section 7 rights through pictures and/or videos. This would include various concerted activities such as picketing.

It is also noteworthy that the employer's social media policy also prohibited the use of the Company logo, trademark or graphics without the Company's prior written approval. The General Counsel also found this provision illegal. The General Counsel concluded that employees would reasonably understand the rule to prohibit the usage of Company logo, trademark, or graphics on leaflets, cartoons, pickets signs, and other material used to engage in protected Section 7 activity. Long-standing Board law holds that an employer's propriety interests in trademarks do not outweigh their employees' ability to use them to engage in Section 7 activity because such usage is non-commercial and does not infringe on an employer's proprietary interests protected by trademark law. Finally, the General Counsel found no violation with respect to the employer's prohibition against an employee defaming the employer's goods and services through social media.

To avoid unintended complaints from the Board, employers should consider crafting social media guidelines that are carefully tailored to their specific business, products and processes, and avoid overly broad language that might restrict employees' Section 7 rights.