Last week, the National Labor Relations Board’s (NLRB) Acting General Counsel issued a report on social media cases that have recently come before the NRLB. As social media use by individuals continues to grow, and more and more employers are adopting social media polices, this is an area that has received a great deal of attention over the last year.
In this report, the General Counsel discusses seven recent cases in which the NLRB reviewed company social media policies, including the policies of some of the nation’s largest employers. In six of the seven cases involved, the NLRB found at least portions of the employer policies to be unlawful. In the seventh case it did not – but only because the employer revised the policy after a complaint was filed.
The NLRB’s focus in these cases is whether the employer’s policies can be construed to “chill” the exercise of employees’ rights under Section 7 of the National Labor Relations Act. Those rights include the right to “form, join, or assist labor organizations,” and to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ….”
The General Counsel states that social media policies that are ambiguous as to their application to Section 7 activities are unlawful. For example, in a case involving General Motors, the NLRB found a policy provision stating that any posting related to GM must be “completely accurate and not misleading” was unlawful. The NLRB found this provision overbroad because employees could reasonably interpret it to apply to discussions about, or criticism of, GM’s labor policies or its treatment of its employees.
Also unlawful, the NLRB found, was the provision requiring that employees “do not reveal non-public information on any public site.” Non-public company information was defined to include any topic related to the financial performance of the company as well as personal information about another employee (including their performance, compensation or status in the company). The NLRB found that employees could reasonably construe this provision to preclude them from discussing terms and conditions of employment, and thus it was unlawful.
The NLRB also found unlawful a provision stating that if employees had any doubt regarding whether information they might post was prohibited under the policy, they should not post it and instead check first with GM’s Communications or Legal departments. Requiring employees to secure permission from the employer before engaging in Section 7 activities violates the Act, the NLRB held.
The NLRB also found unlawful a policy provision prohibiting employees from posting photos, music, videos and quotes or personal information of others without obtaining the owner’s permission, as well as the prohibition on using the company’s logos and trademarks, to be unlawful. The General Counsel explained that in the absence of any further explanation, employees could interpret those provisions as prohibiting the use of photos and videos of employees engaging in protected activities, such as sharing photos of picket signs that contained the company’s logo.
Even a provision titled “Treat Everyone With Respect” was found unlawful by the NLRB. Prohibiting “offensive, demeaning, abusive or inappropriate remarks” was overbroad and would impermissibly include protected criticism of the employer’s labor policies or treatment of employees. The NLRB also found unlawful the requirement that employees report any unusual or inappropriate social media activity, because it encouraged employees to report to management the union activities of other employees and could have the effect of discouraging employees from engaging in protected activities.
While attacking many of these provisions as overbroad or ambiguous, the General Counsel did note that rules that clarify that they do not restrict Section 7 rights, particularly by providing examples of clearly acceptable and unacceptable behaviors under the policy, are not unlawful. The NLRB found, however, that GM’s policy, which contained a clause stating that it “will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act)” was still unlawful despite this clause. The NLRB found that this general statement did not cure the ambiguities in the policy’s overbroad rules.
In another case, however, where the employer gave numerous specific examples of the types of conduct covered by the policy, the NLRB found no violation. It seems clear based upon the examples reviewed by the General Counsel that a general “savings clause” will not be sufficient, but rather specific illustrations regarding how the policy will apply should be included.