In June 2011, I wrote a Business E-Newsletter about the National Labor Relations Board (NLRB) “Facebook Firing” cases that provided guidance to employers regarding whether their social media policies were overbroad under the National Labor Relations Act (NLRA). Since then, the NLRB’s acting general counsel (GC) has released two reports, which interpret the language in social media policies and address specific disciplinary actions in response to employee use of social media. The second report released on January 24, 2012 (Second Report) highlights certain provisions in social media policies that surprisingly violate the NLRA. Thus, even the most well-drafted social media policies may run afoul of the NLRA if not kept up-to-date.
As a reminder, Section 7 of the NLRA protects the rights of both union and non-union employees to engage in “concerted activities,” which includes discussions about wages, hours, or terms and conditions of employment. It also grants employees the rights to engage in concerted activities not only with each other, but with the public as well. Section 8 of the NLRA further provides that it is an unfair labor practice for employers “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [S]ection 7.” An employer’s work rule may be found in violation of the NLRA if it is “reasonably construed” to restrict or prohibit Section 7 activity, even if the rule has never been enforced in such a way.
The Second Report details the GC’s interpretation of the NLRA as applied to 14 cases presenting emerging social media issues. This article focuses on the most common provisions used in social media policies:
Inclusion of a “Savings Clause”
In one case, the NLRB held that a “savings clause,” which provided that the policy would not interfere with the employees’ Section 7 rights, did not salvage an otherwise overly broad social media policy. Specifically, the NLRB determined that the savings clause was insufficient to cure the ambiguities in a rule that limited employee discussion of terms and conditions of employment to those conducted in an “appropriate” manner. The NLRB explained that an employee could not reasonably be expected to know that the savings clause, found elsewhere in the policy, encompassed discussions that the employer deemed “inappropriate.” As such, employers should not assume that a general disclaimer is enough to ensure legal compliance with the NLRA. Until the NLRB provides further guidance, it is advisable to use multiple and specific savings clauses throughout a social media policy.
In a second case, the NLRB held that a social media policy containing the following provisions was overbroad:
- Restricting Employee Disclosure of Confidential Information – The policy prohibited employees from disclosing confidential, sensitive, or non-public information about the employer on or through employer property to a third-party without prior approval. The NLRB found that employees might reasonably interpret the employer’s policy as prohibiting discussion of Section 7 issues with third-parties, which was unlawful. It was irrelevant that the policy only prohibited communications made on or through employer property, as Section 7 gives employees the right to engage in protected activities on the employer’s premises during non-work time and in non-work areas. Nevertheless, in a separate case involving an employer operating a national drugstore chain, the NLRB upheld a policy prohibiting employees from disclosing confidential and/or proprietary information acquired in the course of employment. Important to the NLRB’s decision was that the employer sells pharmaceuticals and the rule contained several references to customers, patients and health information. Accordingly, the NLRB found that employees would reasonably understand that the rule was intended to uphold the customers’ privacy interests and not restrict Section 7 activity.
- Requiring Employer Approval Before Employee Publishes Any Representation About Employer – The policy required employees to obtain prior employer approval before publishing any representation about the employer, including statements to the media, media advertisements, electronic bulletin boards, blogs, and voicemail. The NLRB held that the policy was in violation of the NLRA, as Section 7 protects employee communications to the public that are related to an ongoing labor dispute, including statements to the media. Further, because the policy prohibited all public statements about the employer, it restricted Section 7 communications among employees and was overbroad.
- Requiring Employee Communications About Employer Are Conducted in a “Professional” and “Appropriate” Manner – The policy required that social networking site communications be conducted in a professional and appropriate manner. The NLRB found this provision to be overly broad as employees would reasonably construe broad terms such as “professional” and “appropriate” as prohibiting them from communicating with other employees or third-parties about protected concerns.
- Restricting Employee Use of Employer’s Name, Logos or Trademarks – The policy also prohibited the use of the employer’s name or service marks outside the course of business without prior approval. The NLRB explained that although an employer has a proprietary interest in its service marks and trademarked or copyrighted name, an employee’s noncommercial use of a name, logo, or other trademark to identify the employer in connection with Section 7 activity does not infringe on the employer’s interest. Because an employee could reasonably construe this provision to restrict Section 7 activity, the NLRB held that the provision was overbroad.
- Requiring Employer Approval Before Employees Identify Their Employment – The policy required prior approval before employees could identify themselves as the employer’s employees, and mandated that employees expressly state that their comments were their personal opinions and not necessarily those of the employer. The NLRB found this rule harmful to Section 7 rights because personal profile pages serve an important role in enabling employees to both identify and communicate with one another. The NLRB determined that requiring employees to expressly state that their comments are their own personal opinions every time they post on social media would significantly burden the exercise of Section 7 rights. In a separate case, however, the NLRB upheld a similar rule requiring employees to indicate that their views were their own and not those of the employer because the provision specifically referred to Federal Trade Commission (FTC) regulations governing endorsements and testimonials about products and services. 16 C.F.R. § 255.5 requires that when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, such as employment, the connection must be fully disclosed. The FTC has announced that it is not inclined to bring action against an employer for a single rogue employee who provides an endorsement or testimonial about an employer’s product or service without identifying his or her employee status if the employer’s policy adequately covers the conduct in question. Thus, to satisfy the FTC, the employer should include a rule in its social medial policy requiring employees to identify themselves when providing endorsements or testimonials about the employer’s products or services, and to satisfy the NLRB, the language must be specifically linked to FTC regulations and should not restrict Section 7 activity.
- Requiring That Employees First Discuss Work-Related Concerns With Management – The policy required that employees first discuss work-related concerns with management before posting communications about the employer, and that failure to do so could result in discipline up to termination. The NLRB held that a rule requiring employees to first approach management with work-related concerns on threat of discipline restricts Section 7 activity.
Prohibiting Employees From Making Disparaging Comments About Employer
In a third case, the employer’s social media policy prohibited employees from “[m]aking disparaging comments about the [employer] through any media, including online blogs, other electronic media, or through the media.” The NLRB held that the policy was unlawful because an employee might reasonably construe the rule to restrict Section 7 activity, including comments that the employer was not treating employees fairly or paying them sufficiently. The NLRB commented that the use of specific disclaimer language could have saved this policy.
In a separate case, the NLRB upheld a policy prohibiting the use of social media to make comments about supervisors, coworkers, or the employer that are vulgar, obscene, threatening, intimidating, harassing, or in violation of the employer’s workplace discrimination policies. Thus, antidisparagement provisions may be upheld if they are linked to the employer’s antidiscrimination policies and/or state and federal equal rights laws.
As the law is constantly evolving in the area of employer regulation of social media, employers are advised to stay apprised of recent NLRB developments and regularly review their social media policies to ensure legal compliance. If you would like us to review your social media policy, or if your business does not currently have a social media policy and you would like us to assist in drafting one, please call 208.344.6000 or email a member of our Business or Employment group.