As workplace conversations have migrated from the water cooler to the internet, more and more employers have adopted social media policies, hoping to place some reasonable limits on what their employees say on-line. In a Report issued last week, the Acting General Counsel of the National Labor Relations Board (NLRB) further illuminated the Board's position regarding when these policies will and will not run afoul of the National Labor Relations Act (NLRA). Many social media policies no doubt contain language that would now be considered unlawful by the NLRB's General Counsel, so employers averse to risk should get ready, once again, to revise their policies.
The concern over social media policies is driven by Section 7 of the NLRA, under which employees—regardless of union membership—have a right to engage in protected, concerted, activity for their mutual aid and protection. The NLRB Report analyzes several different social media policies and comments on whether the provisions contained therein are unlawful because of their potentially chilling effect on employees' Section 7 rights. Examples of policy language, followed by the Report's judgment as to their lawfulness, follow:
What, employers are probably now asking, can an employer prohibit in a social media policy? The Report does offer some guidance, including a sample social networking policy of which it approves.
The Report explains that although overly broad and ambiguous rules may run afoul of Section 7, "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, are not unlawful." When an employer provides sufficient examples of prohibited conduct, the Report reasons, employees would not reasonably read the rules to prohibit Section 7 activity.
Thus, an employer may prohibit discriminatory or disparaging remarks, bullying, harassment, and threats of violence as long as it offers examples of "plainly egregious conduct" not protected by Section 7. An employer may, moreover, state that employees 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." (The difference between this approved language and the "encouragement" declared unlawful is a mystery.)
Finally, an employer may prohibit the disclosure of "confidential information" or trade secrets, so long as it defines that information sufficiently narrowly, such as to include "information regarding the development of systems, processes, products, know-how and technology" and "reports, policies, procedures or other internal business-related confidential communication."
The Report draws a line between broad and ambiguous policies – which it deems to be unlawful - and policies that clarify and restrict general admonitions by providing specific examples of plainly egregious employee behavior not protected under Section 7 rather than relying on general disclaimer language. The Report fails, however, to acknowledge the virtues of broad policy language to, among other things, allow for the exercise of employer discretion and consideration of context. Unless an employer crafts a 50-page social media policy, its specific examples of "egregious conduct" may have the unintended effect of restricting the policy more than necessary to avoid chilling Section 7 rights.
The Report represents the latest in a series of extremely pro-employee positions taken by the Board, and it will likely not be the last. At minimum, employers should review their social media policies to determine whether those policies contain any of the language expressly declared unlawful in the Report.
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