The third time is not a charm for employers when it comes to the National Labor Relations Board’s latest memo on social media and communication policies. The memo, released May 30, 2012, is the third such memo in the last 10 months from the NLRB that purports to provide guidance for employers on what the NLRB considers acceptable in a social media policy and, more to the point, what the NLRB says is objectionable – read illegal – under Section 7 of the National Labor Relations Act (NLRA). Many employers may be wishing that this third strike by the NLRB would mean the NLRB was out of line when it comes to social media policies. But it will likely take court action to gain such a ruling.
The NLRA in Section 7 provides that it is an unfair labor practice for an employer to interfere with concerted employee action in addressing wages, benefits, and terms and conditions of employment. The NLRB has long held that employer policies on employee communications may violate Section 7 if such policies prohibit or restrict Section 7 conduct by employees.
In this third memo, the NLRB discusses six cases in which various policy provisions are found to violate Section 7, and one case in which the Board endorses and quotes the employer’s social media policy with approval. The provisions from the six cases with illegal policies are typical for personnel policies and what many employers would consider necessary to protect confidential business information.
Examples of the provisions ruled illegal by the NLRB include:
- A retail stores policy instructing employees not to release “confidential guest, team member or company information” because this provision could be interpreted as barring employees from discussing their own conditions of employment
- Advising employees to not share confidential information with another employee unless the other employee has a need to know because this would prohibit employees from talking with each other about their conditions of employment
- Threatening discharge for failing to report unauthorized access to, or misuse of, confidential information because this would prevent employees from discussing their conditions of employment
- Counseling employees to be “completely accurate and not misleading” social media posts because this could be interpreted to apply to discussions about or criticism of an employer’s labor policies
- Prohibiting the posting of photos, videos and personal information of others without the owner’s permission because this could preclude posting photos and videos of Section 7 activities such as picketing
- Barring use of an employer’s logo because employee social media posts with the logo would be non-commercial use while engaging in Section 7 activities
- Stating that “offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” because this could include criticism of an employer’s treatment of employees
- Encouraging employees to report “any unusual or inappropriate internal social media activity” because this could be read as telling employees to report union activities of co-workers to management
- Suggesting that employees “resolve concerns about work by speaking with co-workers, supervisors, or managers” because this implies that employees cannot air their grievances on line
What’s particularly disconcerting about these six cases is that the NLRB is attacking policies which many companies routinely employ because they are considered necessary to protect confidential business information, including intellectual property assets and trade secrets. This memo is undoubtedly not the last word on social media policies and Section 7 as some of the cases being decided now by the Board will eventually reach the courts for review.