On May 30, 2012, the National Labor Relations Board (NLRB or the
Board) Acting General Counsel issued a press release announcing publication
of its
report on social media, in which it examined seven cases
involving policies governing the use of social media by employees.
For information pertaining to the earlier two reports, click
here.
Summarizing its approach to analyzing employer-issued social
media policies, the NLRB stated that an employer violates the
National Labor Relations Act (NLRA or the Act) through maintenance
of a policy that would "reasonably tend to chill
employees" in their exercise of rights under the Act, whether
or not the employer's workforce is unionized. Using a
two-step inquiry to determine whether the policy would have such an
effect, the Board first looks at whether the policy explicitly
restricts protected activities. If it does not, the policy is
then reviewed to determine whether:
employees would reasonably construe the policy as prohibiting
protected activities;
the policy was promulgated in response to union activity;
or
the policy has been applied to restrict protected
activity.
Of the seven policies the Board reviewed, it found six to
contain unlawful provisions. For example, a provision that
informed employees that "[o]ffensive, demeaning, abusive or
inappropriate remarks are as out of place online as they are
offline" was unlawful, according to the Board, because it
"proscribes a broad spectrum of communications that would
include protected criticisms of the Employer's labor policies
or treatment of employees." Further, the Board stated,
the provision does not specify which communications the employer
would deem inappropriate at work and, thus, is ambiguous as to its
application to [the NLRA].
Other examples of provisions the Board found to be overbroad
and, therefore, unlawful include:
a statement encouraging employees to resolve work-related
concerns by speaking with co-workers, supervisors, or managers,
rather than by posting complaints on-line;
a provision prohibiting employees from posting information
regarding the employer that could be deemed material, non-public,
confidential or proprietary;
a warning to employees to "avoid harming the image
and integrity of the company;"
prohibiting employees from making "disparaging or
defamatory" comments; and
a rule prohibiting communications to the media about the
employer or its business operations.
At least some of these policies had a savings clause, which
stated that the social media policy would be administered in
compliance with applicable laws and regulations (including the
NLRA). The Board took the position that these savings clauses
do not cure otherwise overbroad policies.
Finally, the Board examined, and posted in its entirety, a
social media policy it finds to be lawful. In large part, the
Board based its determination on the fact that this policy included
specific examples of prohibited conduct, rather than broad,
undefined prohibitions, such that employees would not reasonably
read the policy to prohibit protected activity.
In light of the Board's clear stance on social media
policies, and its application to both unionized and non-unionized
employers, we recommend that all employers review their social
media policies and consider whether they would pass NLRB
scrutiny.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
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