Hot Off The Press - Today's New NLRB Social Media Guidance
It’s not just lawyers and bloggers who think the NLRB’s continuing position on social media policies is important. Apparently, the NLRB itself does too. So much so, that – just today – the NLRB’s Office of General Counsel issued its third guidance memorandum on social media policies in the workplace.
The first guidance memorandum on August 18, 2011 was focused primarily on adverse employment decisions based on employee social media activity, with a smaller discussion about the scope of social media policies. The second memorandum on January 24, 2012 also addressed adverse employment action, but contained a more detailed analysis of the do’s and don’ts of workplace policies.
Today’s third memorandum is devoted exclusively to the NLRB’s updated thoughts on seven employer social media policies on which the agency has recently issued administrative rulings. Highlights from today’s memorandum:
Impermissibly Overbroad Policy Provisions According To The NLRB
- Prohibiting the release of “confidential information” or “non-public company information” generally, or unless there is a “need to know” to do the job.
- Requiring posts to be “completely accurate and not misleading”.
- Requiring that an employee secure permission from the employer as a condition to engaging in what might be considered “protected activity”.
- Prohibiting generally the posting of photos, music, videos, quotes, and personal information of others without obtaining the owner’s permission, and from using the employer’s logo or trademarks even for non-commercial use.
- Prohibiting “disparaging” or “defamatory” remarks, as well as “offensive, demeaning, abusive or inappropriate remarks” without further edification.
- Requiring that employees think carefully about friending even their co-workers.
- Requiring employees to report “unusual or inappropriate internal social media activity”.
- Prohibiting employees from commenting on pending legal matters.
- Prohibiting topics “that may be considered objectionable or inflammatory”.
- Encouraging employees to resolve concerns by speaking through internal channels, rather than by posting complaints online.
- Prohibiting posts that may “harm the image and integrity of the company”.
- Prohibiting any and all communications to the media, or requiring prior authorization before doing so.
Permissible Policy Provisions According To The NLRB
- Prohibiting disclosure of specific examples of company information that does not relate to the employees themselves (or their terms and conditions of work).
- Requiring employees to respect all copyright and other intellectual property laws.
- Stating that employees should use their best judgment and exercise personal responsibility.
- Prohibiting online “harassment, bullying, discrimination, or retaliation that wouldn’t be permissible in the workplace”.
- Prohibiting posting anything in the employer’s name without the prior authorization of the employer.
- Requiring that employees expressly state that postings about the employer’s products or services are the employee’s own opinions, and not the employer’s position.
Employer Take Away: What should you as an employer take away from this development?
I believe that many of the NLRB’s positions regarding impermissible and overbroad provisions are way over the top, constitute agency overreaching, and will not ultimately hold up in court. So I offer the usual caveat that we can only get the final word on these issues when the NLRB’s position is appropriately vetted and tested by the judicial system, much like other recent actions of the NLRB have been struck down by courts.
Yet, until someone in a black robe agrees with the “overreaching” contention, the NLRB is currently the only voice of authority in the auditorium. The common thread that seems to tie all of the NLRB’s statements seems to be the following from today’s memorandum: “Rules that are ambiguous as to their application to [protected] activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict [protected] rights are unlawful.”
If your company is not yet willing to test the NLRB’s guidance in court, it is best to either eliminate the patently offending provisions, or draft them in a way that makes the impermissible, permissible.