Policy Provisions: NLRB Issues Third Report on Social Media
On May 30, 2012, the General Counsel for the National Labor Relations Board (NLRB) issued his third report on social media cases since August of 2011. The General Counsel’s prior two reports focused on the review of employee discipline for misconduct on social networks (e.g., discharge for disparaging comments made on Facebook about one’s supervisor). In analyzing those situations, the General Counsel’s first two reports mentioned specific sections of the social media policies that formed the basis for that discipline. However, those two reports did not provide the NLRB’s view or analysis of such policies in general (focusing instead on their application in practice). This prompted many employers to wonder about the NLRB’s view of policies on social media generally, outside of the context of specific discipline/discharge situations, and the General Counsel’s most recent report is the NLRB’s attempt to address that very issue.
In this report, the NLRB’s chief attorney analyzes seven employer social media policies, the seventh of which receives the NLRB “stamp of approval.” Accordingly, employers should be able to learn a great deal about the NLRB’s view on what makes a lawful social media policy from its criticism of the first six policies addressed in this report and its praise of the final policy addressed therein.
The General Counsel’s report initially discusses six employer social media policies with which the NLRB finds fault for a variety of reasons. However, before analyzing the NLRB’s specific critiques of these policies in an effort to glean useful principles about how to avoid the same pitfalls, it is important to note the general lens through which the NLRB appears to view policies like these. In short, the NLRB does not limit itself to criticizing social media policies that actually prohibit employee activity protected by Section 7 of the National Labor Relations Act (“the right to self-organization, 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”). The NLRB is also concerned with policies that, in its view, employees “would reasonably interpret” as prohibiting Section 7 activity. However, review of the General Counsel’s report indicates that the NLRB underestimates the ability of employees to reasonably understand employer policies, and purports to invalidate social media policies that employees could potentially interpret as infringing on Section 7, rather than merely policies that employees would reasonably interpret that way. For example, the NLRB in this report declares that a rule encouraging employees “to resolve concerns about work by speaking with co-workers, supervisors, or managers” is unlawful because “this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternate forums.”
Regardless, employers can still take valuable lessons from the specific policy provisions addressed by the General Counsel in this report. First, the NLRB agrees that an employer’s social media policy can prohibit its employees from disclosing “Secret, Confidential or Attorney-Client Privileged Information,” as employers have a right to safeguard their confidential proprietary and privileged information. However, this must be contrasted with the NLRB’s determination, elsewhere in the report, that a provision prohibiting employees from releasing “confidential guest, team member or company information” is unlawful because it would reasonably be interpreted as prohibiting employees from disclosing information regarding their own conditions of employment or those of other employees (e.g., wages, etc.).
Next, the NLRB acknowledges that an employer social media policy may lawfully provide that “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.” The NLRB’s agreement on this issue only makes sense, as if an employer must be able to prohibit these types of clearly unlawful employee behavior. However, one can contrast the NLRB’s acceptance of that social media policy with its derision of an employer policy stating that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.” The distinction drawn by the General Counsel is that this latter provision “proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees,” while the former prohibits only behavior that is independently unlawful. Accordingly, when employers seek to proscribe inappropriate behavior in a social media policy, the NLRB’s opinion is that employers should seek to be as specific (and therefore non-ambiguous) as possible, while focusing on prohibiting conduct that is unlawful.
The NLRB also acknowledges that employers may include in a social media policy a provision that prohibits employees from posting anything online in the employer’s name or that could reasonably be attributed to the employer, in the absence of prior written authorization. While, according to the NLRB, employees cannot be barred from expressing their own opinions online, employers can affirmatively require that employees take steps to prevent those opinions from being presented as the views or official position of the employer.
Finally, employers can glean a few guiding principles from the social media policy that the NLRB, in this report, declares to be lawful in its entirety. Initially, the NLRB’s endorsement of this policy is based in large part on its efforts to avoid ambiguity through use of “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity.” Additionally, the NLRB further confirms its acceptance of provisions prohibiting employees from disclosing trade secrets or other proprietary company information. Notably, the policy endorsed by the NLRB also includes provisions instructing employees to “[a]lways be fair and courteous” and to “keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet.” In fact, the similarity of these provisions to provisions in other social media policies that the NLRB found to be unlawful demonstrates the extent to which the NLRB appears to want to view each social media policy in its own context – as the remaining provisions of this policy are acceptable to the NLRB and make clear that Section 7 activity is not prohibited, the NLRB appears willing to overlook these provisions, despite the fact that elsewhere the NLRB might consider them unlawful.
In short, the General Counsel’s report provides at least three significant insights into the NLRB’s stance on employer social media policies. First, the NLRB is being very (some would say overly) critical in its review of employer social media policies, and appears to be focused on whether employees could interpret them to prohibit Section 7 activity, rather than whether a reasonable employee would do so. Second, even in the social media policies that the NLRB declares in this report to be unlawful, there are specific provisions that are lawful and that can serve as useful guideposts for employers in creating or revising their own policies. Third, the NLRB in this report demonstrates that its focus in this area is primarily on avoiding the ambiguity it finds inherent in many of these policies. For example, the NLRB would rather employers prohibit statements that are “obscene, threatening, or that might constitute harassment or bullying,” rather than just proscribing “inappropriate” statements.