Category Archives: Technology and the Workplace

On January 24, 2012, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued a new report concerning social media cases.  The report discusses fourteen cases relating to social media issues.  Many of the cases include discussion regarding whether an employer’s social media policy is overbroad and, therefore, illegal under the National Labor Relations Act (NLRA).

Section 7 of the NLRA protects employees’ rights to engage in form, join, or assist labor unions as well as to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  See 29 U.S.C. § 157.  Social media policies may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”  For this reason, it is advisable for employers to include limiting language in their social media policies to make clear that the policy does not prohibit the exercise of Section 7 rights.  However, limiting language may not be sufficient in itself to make a social media policy lawful under the NLRA.

In the NLRB’s new report, one of the cases discussed involved an employer’s social media policy that included limiting language.  The policy 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 policy did not define or provide any examples of what constituted “appropriate” or “inappropriate” discussion of the terms and conditions of employment.  The policy also included limiting language that stated 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 through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

The NLRB determined that the limiting language in the policy was not sufficient to cure the ambiguities regarding what constituted “appropriate” or “inappropriate” discussions about the terms and conditions of employment.  The NLRB determined that an employee could reasonably interpret the policy as prohibiting protected Section 7 activities despite the limiting language.  Accordingly, the NLRB held that the policy was unlawful.

Takeaway:  To comply with the NLRA, it remains a good idea for employers to include limiting language in their social media policies to make clear that Section 7 activities are not prohibited.  However, limiting language alone may not be sufficient to make a social media policy lawful if other aspects of the policy could reasonably be interpreted as restricting the exercise of Section 7 rights.  When employers draft social media policies, they should think critically about all aspects of the policy in addition to including limiting language.

On January 24, 2012, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued a new report concerning social media cases.  The new report follows a previous report on the same subject that the NLRB published in August of 2011.  The new report describes fourteen cases involving social-media related issues.  The cases primarily focus on whether an employer’s social media policy was unlawfully overbroad or whether an employee was terminated for engaging in protected, concerted activity under the National Labor Relations Act (NLRA).

One of the notable aspects of the new report is its discussion of two policies which the NLRB determined did not violate employees’ rights under Section 7 of the NLRA.  Section 7 of the NLRA protects employees’ rights to engage in form, join, or assist labor unions as well as to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  See 29 U.S.C. § 157.  Social media policies may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”

Lawful Social Media Policy Example No. 1:  The first policy that the NLRB found did not violate the NLRA prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”  The NLRB determined that this rule did not violate Section 7 because it appeared in a list of “plainly egregious conduct” and there was no evidence it had been applied to discipline protected activity.

The NLRB noted that the same employer’s previous social media policy did violate the NLRA.  The previous policy prohibited “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.”  The NLRB determined that this policy was overbroad because of its use of “broad terms” such as “defamatory,” which could arguably apply to protected criticism of the employer’s labor policies or treatment of employees.  The NLRB also found that the employer used the policy to discipline employees for protected conduct.

The primary difference between the employer’s lawful policy and its previous, unlawful policy appears to be that the lawful policy described prohibited conduct with greater specificity and referred to the employer’s other workplace policies.

Lawful Social Media Policy Example No. 2:  The second policy that the NLRB found did not violate Section 7 provided that:

• The employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws;
• Employees were prohibited from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients;
• Employees were prohibited from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations; and
• Employees were prohibited from promoting the employer’s products or services online due to Federal Trade Commission (FTC) regulations.

Because of the specific examples provided in this policy, the NLRB found that employees would understand that the confidentiality restrictions related only to communications that implicate security regulations, the confidentiality of the employer’s customers, or embargoed information.  With respect to the restrictions on promotional content, the NLRB held that “employees could not reasonably construe the rule to apply to their communications regarding working conditions, as they would not consider those communications to promote or advertise on behalf of the Employer.”

Takeaways: Determining whether a social media policy is overbroad in violation of the NLRA is highly dependent on context.  The NLRB’s new report on social media shows that an employer’s policy is more likely to be found to be lawful if it describes prohibited conduct with specificity.  Social media policies that refer to other workplace policies (e.g., anti-discrimination, anti-harassment, or confidentiality policies) or governing laws and regulations (e.g., FTC regulations) are also more likely to be upheld.  As a final matter, it remains a good idea for employers to include limiting language in their social media policies to make clear that the policy does not prohibit the exercise of Section 7 rights.

Section 7 of the National Labor Relations Act (NLRA) provides that employees have the rights to engage in form, join, or assist labor unions as well as “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  See 29 U.S.C. § 157.  Section 7 applies to both unionized and non-unionized employers, and among other things, it generally allows employees to discuss the terms and conditions of their employment with one another.

Over the past year, the National Labor Relations Board (NLRB) has aggressively enforced employees’ rights under Section 7 in the context of social media, such as Facebook, Twitter, or LinkedIn.  The NLRB has also focused on employers’ social media policies, which may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”

In August of 2011, the General Counsel of the NLRB released a report addressing the issue of Section 7 rights in the context of social media.  The Report describes the General Counsel’s position with respect to 14 cases involving activities that are arguably protected under Section 7 and policies that are arguably overbroad under Section 7.  One of the primary takeaways from the Report is that the best way for an employer to ensure that its social media policy will not be considered to be overbroad and, therefore, in violation of Section 7, is to include limiting language in the policy to clarify that Section 7 activities are not prohibited.

In the Report, the General Counsel stated that the NLRB considers the following types of policies overbroad under Section 7:

• A policy that prohibited employees from posting pictures of themselves in any media, including the internet, which depict the company in any way, including a company uniform, corporate logo, or company vehicle;
• A policy that prohibited employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors; and
• A policy that prohibited employees from using the company name, address, or other information on their personal profiles.

The Report also stated that the following types of policies were overbroad because they did not contain limiting language to remove potential ambiguities regarding whether Section 7 activity is prohibited:

• A policy that prohibited “offensive conduct” and “rude and discourteous behavior;”
• A policy that prohibited “inappropriate discussions” about the company, management, and/or coworkers;
• A policy that prohibited “any communication or post that constitutes embarrassment, harassment or defamation of the [employer] or of any . . . employee, officer, board member, representative, or staff member [of the employer];”
• A policy that prohibited “statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees;”
• A policy that prohibited employees from “talk[ing] about company business on their personal accounts . . ., posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy . . . disclosing inappropriate or sensitive information about the Employer . . . [or] posting any pictures or comments involving the company or its employees that could be construed as inappropriate.

In addition, the Report stated that a policy that prohibited “using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity” was overbroad because the policy “provided no definition or guidance as to what the Employer considered to be private or confidential.”

Given the broad scope of the types of policies that the NLRB considers to be overbroad under Section 7, the best way for employers to reduce their potential liability is to include some limiting language in their social media policies to clarify that Section 7 activities are not prohibited.  By including limiting language in a social media policy, an employer should be able to reduce the risk that the NLRB will find that its policy is unlawfully overbroad under Section 7.