THE NLRB'S EVOLVING GUIDELINES ON SOCIAL MEDIA ISSUES
As employers continue to grapple with use of social media by employees for business, for pleasure, and in and outside the workplace, the National Labor Relations Board (the "Board") has issued another report on social media cases (Memorandum OM 12-31), updating a prior report (Memorandum OM 11-74), which we discussed in an earlier post. In its news release on the updated report, the Board offers two key take-aways:
1. "Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees."
2. "An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."
The updated report covers 14 cases in total, which involve disciplinary action, including discharges, for employee social media activity. The conclusions in the report demonstrate the fact-specific nature of an inquiry into whether an employer is enforcing its social media policy in a discriminatory manner, which essentially turns on whether the social media activity that is regulated through the policy is group activity protected by Section 7 of the National Labor Relations Act ("NLRA"), as opposed to individual activity (or "gripes" as they are sometimes referred to in the report). Of the 14 cases discussed in the report, seven address whether the employer's social media policy was lawful on its face, and five of the policies addressed were found to be unlawfully broad for one reason or another. Although the Board's news release offers the two main take-aways noted above, there are several other issues and pitfalls addressed in the report that employers need to be aware of when drafting a social media policy:
· Non-Union Employees. Both union and non-union employees' social media activities are protected by the NLRA. The report makes no distinction between union and non-union employees in analyzing whether a social media policy is lawful on its face or in its application.
· Disparaging Comments. The report considers several examples of policies prohibiting disparaging comments in one way or another, such as general prohibitions on "defamatory" language, "inappropriate conversations," or using "unprofessional communications," or requiring social media communications to be "professional." The report emphasizes that these types of blanket prohibitions can chill employees in the exercise of their rights under Section 7 of the NLRA to "engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection," and were therefore found to be unlawful. For example, the Board held that a rule prohibiting "[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media" would reasonably chill Section 7 rights because it could reasonably be construed to prohibit an employee from criticizing the employer's pay practices, and did not include any limiting language or examples of prohibited commentary. Of course, a social media policy still needs to be consistent the employer's policies against harassment and discrimination, which is where limiting language, an issued discussed below, comes into play.
· Confidential Information. The report's conclusions on prohibitions on discussing "confidential information" illustrate the careful balance that must be struck between an employer's duty or desire to protect certain information, such as trade secrets, non-public financial information, protected personal information, and the like, on the one hand, and an employee's right to discuss terms and conditions of employment, such as wages, on the other hand. One policy addressed by the report prohibited employees from disclosing or communicating information of a confidential, sensitive nature, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department. The policy was found unlawful because it did not define confidential, sensitive, or non-public information and could therefore reasonably be construed to prohibit employee from discussing matters such as wages and working conditions, which may be non-public but are discussions protected by the NLRA. Again, limiting language and explanatory definitions can remedy the issue.
· Company Name, Logo, & Marks. Many organizations seek to limit the use of their company name, logo, and trade or service marks, but the report makes clear that employees have a Section 7 right to use their employer's name or logo in conjunction with protected concerted activity, such as communicating with co-workers or the public in general about a labor dispute. Accordingly, a policy prohibiting the use of the company name or service mark outside the course of business without approval of the law department was held unlawful.
· Media Communications. Restrictions on communications with the media can be another difficult area to navigate. The report explains that employees have the right to communicate with the public regarding an on-going labor dispute, and that for this reason blanket prohibitions on communicating with the media or requiring prior authorizations will be held to be unlawfully overbroad.
· Identifying the Employment Relationship. The report found a policy that required that employees always identify themselves as the employer's employees on social media and state that their views were their own when posting about job-related matters was both (1) unlawfully overbroad, because the Board views personal profile pages as an important function in enabling employees to communicate on social media with co-workers at their own or other locations (although the Board does not explain how the policy impeded this function), and (2) unlawfully burdensome on Section 7 communications because it required employees to repeat that their views are their own in every communication. In the context of another policy, however, the Board recognized that employers need to carefully navigate between allowing communications protected under the NLRA and the Federal Trade Commission's guidelines on endorsements and testimonials, pursuant to which individuals who have a relationship to a company, such as employees, must disclosure that relationship when discussing the company's products or services or those of its competitors. Thus, the Board found lawful a policy that required employees to state that their views were their own and not those of the employer when discussing "promotional content" via social media, and defined "promotional content" as communications designed to endorse, promote, sell, advertise or otherwise support the employer and its products and services, referring to the Federal Trade Commission's regulations.
· Savings Clauses. Although the report emphasizes that limiting language can cure overbroad language in a social media policy, a general savings clause may be insufficient to render a social media policy lawful under the NLRA. For example, one policy discussed in the report stated that "in external social networking situations, employees should generally avoid identifying themselves as the Employer's employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner." The Board found the policy unlawful because it did not define or explain what was "appropriate," either through specific examples or limiting language, which could chill employees from criticizing the employer's labor policies, treatment of employees, or other terms and conditions of employment. The policy had a savings clause that provided that the policy would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively though representatives of their choosing, or to engage in other concerted activities, or to refrain from engaging in such activities. The Board concluded that an employee could not reasonably be expected to know that this language encompassed discussions the employer deemed "inappropriate" and thus the savings clause was insufficient to render lawful the otherwise overbroad policy.
· Limiting Language and Examples. Although the report includes several examples of overbroad policies, it also includes examples of lawful policies that restrict social media communications on the above-discussed topics, but included limiting language or examples, which kept the policy within the bounds of the NLRA. For example, a policy that prohibited social media communications that are vulgar, obscene, threatening, intimidating, harassing, or a violation of company policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status or characteristic, was held lawful because it provided examples of the egregious conduct it prohibited. Similarly, a policy that prohibited employees from using or disclosing confidential and/or proprietary information was found lawful where it defined confidential and/or proprietary information as including personal health information about customers or patients, and "embargoed information" such as launch release dates and pending reorganizations. The report explains that the limiting language and examples made clear that the policy was intended to protect the employer's legitimate interest in keeping certain information confidential and the privacy interests of the customers, and the prohibitions would not reasonably be understood to restrict communications protected under Section 7 of the NLRA.
Appropriate policing of employees' social media activities is necessary given the speed at which online communications are spread, and the potential impact that such communications may have on an employer's operations and reputation. To be sure, there are a host of legal and business concerns that need to be addressed in a comprehensive social media policy, but the two Board reports are a helpful starting place for employers looking to create or amend social media policies.
This post was authored by Matt Lampe, Joseph Bernasky, and Michele Bradley of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.