Hunton Employment & Labor Perspectives

In recent years, the National Labor Relations Board (NLRB) and unions have placed a growing emphasis on extending the application of labor law into the social media arena.  As part of this initiative, the NLRB has adopted a strong stance against social media policies that it believes pose a threat to employees’ right to engage in protected activities under Section 7 of the National Labor Relations Act (NLRA).

Section 7 of the NLRA protects, among other things, an employee’s right to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; and to disclose, expose, debate and disclose terms and conditions of employment.  29 U.S.C. § 157.  Employer policies regulating social media use will be held to violate Section 8(a)(1) of the NLRA if it “interfere[s] with, restrain[s], or coerce[s] employees in the exercise of the rights guaranteed in section 7.”  29 U.S.C. § 158.

In the last ten months, Lafe E. Solomon, the acting general counsel for the NLRB, has issued three reports discussing how the agency has handled the increase in the number of charges being brought against employers for allegedly unlawful social media policies.  According to Solomon,

[An employer’s policy] is clearly unlawful if it explicitly restricts Section 7 protected activities.  If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Memorandum OM 12-59.  Also according to Solomon, “[r]ules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.”  Memorandum OM 12-59.

The most recent May 30, 2012 report provides specific examples of policies that the General Counsel’s office believes are acceptable policies. This latest report has been garnering criticism for what some are calling a heavy-handed approach.  Based on this recent report, the general take-away points for employers are that broad and general social media policies will most likely be invalid, including but not limited to those that use broad terms like “appropriate” or “inappropriate” without the use of limiting language or examples of what would be considered “inappropriate,” those that prohibit posting photos that include company logos without any limiting language, or those that prohibit disclosing confidential information without any guidance as to what the employer considers confidential.  For example, the following types of social media provisions will likely not pass muster -- broad restrictions on releasing confidential information about the company or coworkers; broad restrictions on sharing confidential information with coworkers; instructions that an employee must ensure that posts are completely accurate and not misleading and that they do not reveal non-public information on any public site; prohibitions against posting personal information about other employees and contingent workers, commenting on “legal matters,” picking fights, engaging in controversial discussions, and airing complaints online; or a requirement that an employee obtain permission prior to posting questionable material.  Furthermore, global savings clauses in social media policies that state something to the effect that nothing in the policy is intended to infringe upon an employee’s NLRA rights will not fix invalid provisions within the policies; instead, each provision will be assessed on its own.

The obvious challenges to employers, both with unionized and nonunionized workforces, is how to have a broad enough social media policy to protect against, among other things, possible damage to the company’s reputation, business relationships, and competitive advantage, possible loss of company trade secrets or intellectual property, possible liability associated with employees posting harassing, confidential, and/or other inappropriate material on other employees, and possible violations of Federal Trade Commission regulations which place restrictions on employee endorsement of employer products or services, while still trying to comply with the NLRB’s restrictive positions on social media policies.  Nevertheless, given the growing business concerns associated with employees’ increased use of social media and the NLRB’s focus on employer social media policies, employers should consider reviewing and updating their social media policies and any other related policies, like non-harassment policies, that may also have social media implications.