Lafe Solomon, Acting General Counsel of the National Labor Relations Board, issued a new report yesterday describing various social media-related cases that the Board has handled during the preceding year. 
The report, which is 35 pages long, is interesting reading. But the most interesting thing is that nearly all of the employer social media policies mentioned were found to be unlawful to some extent. Specifically, the NLRB found all of the following policies and policy language to be violations of Section 8(a)(1):
- A requirement that employees “avoid identifying themselves as [company] employees, unless there was a legitimate business need to do so,” and to only discuss terms and conditions of employment “in an appropriate manner.”
- A ban on “unprofessional communication that could negatively impact the [company's] reputation or interfere with [its] mission.”
- A ban on “unprofessional/inappropriate communication regarding members of the [company's] community.”
- A ban on “disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.”
- A ban on “use of the company’s name or service marks outside the course of business without prior approval of the law department.”
- A ban on “publishing any representation about the company without prior approval by senior management and the law department.”
- A requirement that employees obtain prior management approval before they could “identify themselves as the Employer’s employees” (and then they had to “expressly state that their comments are their personal opinions and do not necessarily reflect the Employer’s opinions”).
- A requirement that all “social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments regarding the employer and its subsidiaries, and their shareholders, officers, employees, customers, suppliers, contractors, and patients.”
- A ban on “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.
Common problems with the above requirements and prohibitions, according to the Board, is that they either chill, or burden, or flat out prohibit the exercise of employees’ Section 7 rights to engage in collective discussion on Facebook (and elsewhere) about workplace-related issues. Several of the policy provisions (such as the bans on defamation and disclosing “confidential” information, or the requirement that things be discussed in an “appropriate” manner) failed in the Board’s eyes because no examples or context were offered to the employee, and an employee reading the provision would understand his or her Section 7 rights being limited. (Or at least, so sayeth the Board.)
Of all of the policies that the Board discussed in the memo, it pushed the “Like” button on just two:
- An employer’s prohibition on any “post or display comments about coworkers or supervisors or the Employer that [is] vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” (This prohibition was actually an updated version of the last bullet item listed above – the Board found this employer had corrected the Board’s concerns about the word “defamatory”.)
- An employer’s policy that banned “using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations, and that prohibited employees from referring to the company “by name,” “publishing any promotional content,” and requiring employees employees, “while engaging in social networking activities for personal purposes, [to] indicate that their views were their own and did not reflect those of their employer.” (The latter provisions the Board found OK because they were found only in a section of the policy called “Promotional Content,” and that as a result, “employees could not reasonably construe the rule to apply to their communications regarding working conditions, as they would not consider those communications to promote or advertise on behalf of the Employer.”)
And for those employers who have a boilerplate “savings clause” in their social media policies (something like: “this policy should not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities“), nice try. The NLRB held that this exact savings clause did not salvage the company’s otherwise-unlawful policy, essentially because the Board concluded that the average employee reading the savings clause would have no idea what it meant (“an employee could not reasonably be expected to know that this [savings clause] language encompasses discussions the Employer deems
‘inappropriate’“).
Much of the above guidance is not new — though I do admit that it is nice for once to see examples (if only just a few) of policies that the Board actually finds to pass muster under Section 8(a)(1).
