NLRB’S General Counsel Releases New Social Media Report Containing Much Needed Guidance on Lawful Social Media Policies
For the second time this year, the office of the National Labor Relations Board’s acting general counsel Lafe Solomon has released a report summarizing how his office has addressed various complaints relating to social media policies, or disciplinary actions taken in response to employee social media activity. As this report shows, the Board’s focus in social media cases remains whether a policy or disciplinary action violates the rights afforded to employees by Section 7 of the National Labor Relations Act (“NLRA”), including the right to “engage in . . . concerted activities for the purposes of collective bargaining or other mutual aid and protection.” In an effort to protect these rights, the Board has filed numerous complaints against employers whose social media policies may “reasonably” be read to restrict employee’s rights to discuss their terms and conditions of their employment online with co-workers or other third parties. This ambiguous standard has led to significant uncertainty and frustration regarding social media policies, especially in light of the dearth of binding NLRB decisions addressing this issue. For this reason, this most recent report’s inclusion of several examples that are not unlawful is especially useful for employers seeking to address employee social media use without running afoul of the NLRB.
A key takeaway from this report is the importance of using examples to clarify what types of behavior are prohibited by a potentially ambiguous policy. For example, the report examined one policy stating that “harassment, bullying, discrimination, or retaliation” were unacceptable, even if this behavior took place “after hours, from home and on home computers.” The report noted that this language did not violate the NLRA because the policy “would not reasonably be construed to apply to Section 7 activity” and because the policy provided examples of prohibited acts, including bullying and discrimination.
Similarly, the Board declined to prosecute a complaint involving a policy that prohibited “inappropriate postings” and specified that such postings would include “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct.” The policy further instructed employees to be “fair and courteous” and informed them that they were “more likely” to resolve work complaints by speaking directly to co-workers or using the company’s open door policy “than by posting complaints to a social media outlet.” The policy also prohibited communications that “reasonably could be viewed as malicious, obscene, threatening, or intimidating,” including postings that “disparage” individuals or those that “might constitute harassment or bullying.” The Board’s report emphasized that the policy prohibited “plainly egregious conduct, such as discrimination and threats of violence,” and noted the lack of evidence that the company had used the rule to discipline employees for exercising their Section 7 rights.
Finally, the report also concluded that a social media policy that required employees to maintain the confidentiality of trade secrets and other confidential information was also lawful. Specifically, the report noted that employees do not have a protected right to disclose trade secrets, and approvingly cited the numerous examples of confidential trade secrets included in the policy, which would prevent employees from construing the policy to prohibit protected communications about working conditions.
While these cases are notable for providing long-awaited guidance on permissible provisions to include in social media policies, the other cases discussed in the report make it clear that the Board is still focused on pursuing employers who promulgate and enforce unlawful social media policies that might be read to limit employees’ rights under the NLRA. For this reason, this rare guidance on acceptable provisions is especially useful, and a welcome development for employers.