United States: Workplace Challenges In 2015, Part 2 Of 5: Continued Focus On Social Media Policies That The NLRB Will Endorse

Recently, Mintz Levin held a seminar in New York City that we designed to address some of the major challenges employers are facing in the New Year.  Our program contained segments on New York City's paid sick leave law, effective management of HR Issues, the Affordable Care Act, employment practices liability insurance coverage, and workplace privacy.  Over the next few weeks we will be posting a series of entries following up on the critical workplace issues raised during these segments.

Today's topic: Social Media Policies and the NLRB.

During our workplace privacy segment, our presenters, Mintz Levin attorneys Cynthia Larose and Richard Block, and Vice President, Deputy General Counsel of Time, Inc., Michelle Goldstein, addressed several issues that employers are grappling with as they settle into 2015, including employee notification issues raised in connection with a data breach, protecting employee data residing on cloud-based storage servers, privacy lawsuits resulting from wiping data from mobile devices; data breaches as an issue raised during collective bargaining (which we will address in a separate post) and the topic we are addressing in this post: social media policies and the NLRB.

As we have highlighted in previous posts, employers have been (rightfully) concerned about the scope of their employee social media policies and whether such policies will withstand NLRB scrutiny.  The NLRB and various Administrative Law Judges have addressed employer social media polices in multiple cases over the past year mostly coming down on the side of employees.  And now the NLRB's Office of General Counsel has released an Advice Memorandum (dated from 2012) that has provided some additional guidance in this area.

As many of you know, Section 7 of the National Labor Relations Act grants employees the right to engage in concerted activity for their mutual aid or protection, and this includes the right to discuss their terms and conditions of employment.  Employers violate this right when they maintain a social media policy or apply it in a way that restricts the employees' ability to discuss the terms and conditions of their employment.  Specifically, employers violate this right by (i) maintaining policies that explicitly restrict this right; (ii) maintaining policies that employees would reasonably construe as restricting this right; (iii) creating policies in response to union activity; or (iv) applying rules in a way that restrict this right.  Typically, the analysis comes down to whether the employer maintains the policy or applies the rule to restrict the employee's ability to engage in concerted activity as opposed to protecting its legitimate business interests.

Under this framework, the Advice Memorandum evaluated a number of provisions in U.S. Security Associates, Inc.'s Personal Blogging and Social Networking Policy, which applied to employees who maintained personal blogs, used social networking websites, or engaged in texting that contained references or postings about the company's business, products, services, or employees.  The Office of the General Counsel found a number of the rules in this policy unlawful, including the following:

  • "Confidential" and "sensitive" information: A handbook provision stated that employees may not disclose sensitive, proprietary, confidential, or financial information about U.S. Security, its customers, or its clients. The Memorandum concluded that this was unlawfully overbroad because employees would reasonably construe the prohibition against disclosing "confidential information" as prohibiting them from discussing the terms and conditions of their employment.  Importantly, the employee handbook had defined confidential information to include information contained in personnel records.  Because U.S. Security designated personnel records as confidential, the Memorandum stated that this could be reasonably construed as prohibiting employees from discussing the terms and conditions of employment with co-workers and outside parties (e.g., unions).  The Memorandum also noted that the term "sensitive" was ambiguous and, when interpreted in light of the definition of "confidential" mentioned above, it could be construed as a constraint on employees' ability to discuss the terms and conditions of their employment.
  • Posting material that "violates the privacy of another": For similar reasons, the Memorandum also declared unlawful a provision prohibiting employees from posting material on social media that "violates the privacy of another." This provision was unlawful because employees would reasonably construe the ban as precluding them from sharing information about their coworkers' terms and conditions of employment with other coworkers or with outside organizations.
  • "Linking" to the employer's website: The Memorandum deemed unlawful a provision preventing employees from linking to the company website or otherwise referring to the company website on their social media or blog platform without obtaining prior written permission from the company. This provision was unlawful for a few reasons.  First, it would hinder employees in exercising their rights because they would not be allowed to refer third parties to the employer's website to help gather support for their position.  Second, because the employer's website was publicly available, any interest the employer had in controlling access to its website was greatly outweighed by the need to protect an employee's ability to exercise his/her statutory rights.  Third, any work rule requiring employees to secure permission from their employer prior to engaging in concerted activities was unlawful.
  • Posting "embarrassing" material: A provision prohibiting employees from posting material on social media that is "embarrassing" to another person, the company, or the company's customers or clients, was unlawful because employees would reasonably construe this rule to bar them from discussing work-related complaints, even if they were embarrassing.

The Office of the General Counsel did, however, uphold the validity of the following provisions:

  • Requiring employees to post a disclaimer: Security required that employees who identify themselves on a website or blog as an employee of U.S. Security must state that the views expressed are the employee's alone and they do not reflect the views of the company. This provision was lawful because the employer has a legitimate interest in protecting itself against unauthorized postings and the requirement would not unduly burden employees in their exercise of their rights.
  • Requiring employees to express themselves in a "respectful manner": The Memorandum stated that employees would not reasonably construe this requirement as prohibiting them from engaging in concerted activity. Importantly, the Memorandum stated that the meaning of "respectful manner" was construed in light of its accompanying terms in the employee handbook – as such, it interpreted "respectful manner" as similar to the prohibitions against threatening coworkers or using profane language.

Based on the NLRB's discussion in the Advice Memorandum, we continue to promote the view that we've promoted before: "the key to an effective, enforceable policy is identifying with clarity the specific activities that will not be tolerated and carving out with equal precision those that the NLRB has made clear cannot be infringed. . . .  Drafting restrictions narrowly can often make the difference in whether subsequent challenges succeed or fail."  Employers should also give real thought to crafting a policy that will uniquely suit their legitimate business interests, and in doing so, they should consider whether not only to add language that focuses on what an employee shouldn't do, but also to focus on giving employees the tools they need to communicate over social media in a positive manner.  We will continue to monitor additional guidance and case law on the social media issue and report back.

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.

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Michael S. Arnold
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