At the end of May, in its third report on the subject in less than 12 months, the National Labor Relations Board (NLRB) issued a report from its Acting General Counsel, Lafe Solomon, on recent social media cases which have come before it. This report, unlike the previous two, focuses exclusively on employer social media policies. In introducing the report, Mr. Solomon stated:
Employee use of social media as it relates to the workplace continues to increase, raising various concerns by employers, and in turn, resulting in employers' drafting new and/or revising existing policies and rules to address these concerns. These policies and rules cover such topics as the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government agencies.
The report discusses seven cases which involved employer social media policies. The NLRB found all but one of the social media policies to contain unlawful violations of the concept of "protected, concerted activity" under the National Labor Relations Act (NLRA). Under that concept, employees have a right to communicate as a group with each other, their employer and others regarding their terms and conditions of employment so long as they do so in a lawful fashion. The NLRB found various types of social media policy language to impinge upon employee rights to engage in "protected, concerted activity."
For example, the following social media policy provisions were found to be violations of employee "protected, concerted activity" rights:
- A policy instruction to employees not to release "confidential guest, team member or company information."
- A directive to employees not to share confidential information with co-workers unless necessary to do their job and not to have discussions regarding confidential information in the break room.
- A policy that indicates that employees may be discharged or prosecuted for failing to report unauthorized access to or misuse of confidential company information.
- A company policy which prohibits employees from posting photos, music, videos and the quotes and personal information of others without obtaining the owner's permission and ensuring that the content can be legally shared.
- A policy against employee use of company logos and trademarks on social media sites.
- An instruction to employees that "[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline."
In addition, the NLRB found that "savings clauses" in employer policies — policy language stating that the social media policy is intended to be administered in compliance with the law — did not cure the unlawful parts of such policies.
The NLRB did find some policy language to be lawful. For example:
- Policy language that urged employees to respect copyright and other intellectual property laws when using social media.
- Policy language that prohibits employees from posting anything on the Internet in the name of the employer or in a manner that could reasonably be attributed to the employer.
In addition, the NLRB published with the report an entire social media policy which it deemed to be lawful.
Despite this, the NLRB's report leaves the impression that the vast majority of social media policy language would be found unlawful by the NLRB. This would appear to be the case even where that policy language is intended to strike a reasonable balance regarding legitimate employer interests like confidential company information and anti-harassment concerns.
To make matters more difficult for employers, in determining whether given policy language was lawful or unlawful, the NLRB overtly relied on the context of the language within the overall employment policy to make its decision. For example, in the social media policy which the NLRB deemed to be entirely lawful, one portion of the policy contained language exhorting employees using social media to "be respectful." The NLRB looked to context to find this portion of the policy lawful:
In certain contexts, the rule's exhortation to be respectful and "fair and courteous" in the posting of comments, complaints, photographs, or videos, could be overly broad. The rule [in this policy], however, provides sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 [of the NLRA] rights.
This context-based analysis provides little useful guidance to employers, especially because there is no one-size-fits-all social media policy. The social media policy that was blessed as lawful by the NLRB cannot be adopted by all employers, given the fact that social media policies vary widely among employers based on a given company's social media culture. Some employers may want all their employees using social media to market their business while other employers may not want employees using social media for business at all.
In the end, the NLRB's report leaves the impression that the NLRB's analysis of social media policy language is whimsical and that the NLRB does not understand or seek to balance the legitimate concerns of employers regarding social media with employee rights to engage in "protected, concerted" activity. Because of this, it is likely that the parameters of legitimate social media policies will ultimately have to be enunciated by the courts in reviewing the NLRB's generally anti-employer decisions on this issue. Unfortunately, employers are, for the moment, left to wonder where the lines will ultimately be drawn.
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