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NLRB comes down hard on social media policies

June 7, 2012

Article courtesy of SBAM Approved Partner ASE

By Anthony Kaylin

ASE previously reported on the National Labor Relations Board General Counsel’s previous memos on what are appropriate and inappropriate policy statements with respect to social media.  Now comes the next round of restrictive readings, according to a memo of the General Counsel published May 30, 2012.

The General Counsel boils down the issue to evaluating social media policies on whether the restrictions “would reasonably be construed to chill the exercise of Section 7 rights” by employees under the National Labor Relations Act.   Essentially, under this memo, except for a very narrow exception, all employees’ speech, whether oral, written or virtual is protected under the NLRA.  Basically, it appears that the worst is true, that the NLRB wants all companies to be unionized and that companies have too long restricted the rights of employees to organize.

The following are examples of policies the General Counsel found unlawful because, the General Counsel believes,they would discourage or prohibit discussion by employees in violation of the National Labor Relations Act. Or they are so overbroad as to lead someone to believe so:

  • “[i]f you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles. . . Don’t release confidential guest, team member or company information. . . .”  
  • “Make sure someone needs to know. You should never share confidential information with another team member unless they have a need to know the information to do their job. If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so.If you are unsure, talk to your supervisor.”
  • “Don’t have conversations regarding confidential information in the Breakroom or in any other open area. Never discuss confidential information at home or in public areas.”
  • “You must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site.”
  • “[w]hen in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST.  Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea.”
  • Under a section called “Treat Everyone with Respect”:  “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and inyour social media communications.”
  • “Think carefully about ‘friending’ co-workers . . . on external social media sites. Communications with co-workers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your personal social media channels could become a concern in the workplace.”
  •  “Legal matters. Don’t comment on any legal matters, including pending litigation or disputes.”
  • “Adopt a friendly tone when engaging online. Don’t pick fights.”

It appears that any overly broad statement that could imply any restriction to an employee’s speech on any subject, with certain exceptions, would not be acceptable to the General Counsel. Furthermore, a savings clause such as “this Policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act” does not save a policy because,according to the General Counsel, employees would not understand from this disclaimer that protected activities are in fact permitted.

So what does the General Counsel say is ok?  See the examples below:

  • “Develop a healthy suspicion.  Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.”
  • “Do not disclose information directly or indirectly related to the safety performance of [Employer] systems or components for product.”
  • “Respect all copyright and other intellectual property laws. For [Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer’s] own copyrights, trademarks and brands.”
  • “Harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.”
  • “Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the employer.”
  • “Any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer] is prohibited.”

In other words, only policies prohibiting the employee from acting as if to represent the employer online, or conducting otherwise illegal conduct, would be acceptable to the General Counsel. Nothing else would be.

The real question for employers is to what extent they should comply with these requirements which, after all, come not through legislation or the standard regulatory process. Instead they come from the General Counsel of a theoretically independent but (in reality at this time) highly politicized agency of the federal government.

Reasonable advice would be, in general, to play it safe. The reality is that under the current White House administration, the NLRB carries the classic big stick and is decidedly not walking softly. Therefore, a “vanilla” policy may be the wisest policy. It will at least protect the employer from NLRB complaints even if, at the same time, it fails to address all the areas of the employer’s concern.

For one example of a social media policy that would fall under compliance with the General Counsel, go here or contact a member of the ASE staff for assistance.

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