Hunton Employment & Labor Perspectives

In an Advice Memorandum released last month, the National Labor Relations Board (“NLRB”) Associate General Counsel’s office found that portions of a social media policy violated Section 7 of the National Labor Relations Act, which protects employees’ rights to “self-organiz[e], to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” 

The company’s social media policy stated, in pertinent part:

You have an obligation to protect confidential, non-public information to which you have access in the course of your work.  Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies . . . or about other Associates, customers, suppliers or business partners.  If you have questions about what is confidential, ask your manager.

Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.

Do not defame or otherwise discredit the Company’s products or services . . . .

Speak up if you believe that anyone is violating these guidelines or misusing a Company-sponsored site.  Please submit such reports to your manager and provide as much specific information as possible . . . .

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 NLRB found that the prohibitions against disclosing confidential information, and using the company’s logo or photos of the company’s premises were unlawful.  The NLRB found that the rule prohibiting disclosure of “non-public” and “confidential” information was too vague, and without limiting language, could be reasonably construed by employees to include protected Section 7 subject matter, such as their terms and conditions of employment.  The Board also found that the restriction on employees’ use of the company’s logo was unlawful because it could reasonably be construed as prohibiting online Section 7 communications, such as “electronic leaflets, cartoons, or . . . photos of picket signs containing the [company’s] logo.”  Likewise, the NLRB found that the policy against photographing or videotaping the company’s premises was unlawful because it could be interpreted as prohibiting employees from using social media to share information regarding protected Section 7 activities.  Notably, the NLRB found that the savings clause in the company’s policy did not cure the unlawful provisions. 

The Board found lawful, however, the company’s policy prohibiting employees from defaming or discrediting the company’s products and services.  The memo also advised that the company’s policy requiring employees to speak up if they were aware of any violation of the social media policy was lawful because it did not expressly restrict communication or threaten discipline and it could not be interpreted as restricting Section 7 activity. 

The recently released Advice Memo is indicative of the heightened scrutiny that the NLRB is placing on social media policies in particular and employee handbooks in general.   

Employers should be mindful of their social media policies and whether those policies are sufficiently narrow in scope to avoid the Board’s attention.