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eLABORate: NLRB Acting General Counsel Releases Third Social Media Report

June 07, 2012

Lafe Solomon, Acting General Counsel for the NLRB, issued a third report on May 30th focusing on social media policies. According to the report, the key question when developing a social media policy is whether restrictions could "reasonably be construed to chill the exercise of Section 7 rights" under the National Labor Relations Act. The report is interesting, in that it analyzes some specific company restrictions and then goes on to state whether the General Counsel's office considers the restrictions lawful or unlawful. Overall, six out of seven policies were deemed unlawful by the General Counsel's office, but it is important to keep in mind that the General Counsel's opinion is merely advisory and does not have the force of law.

One of the policies considered barred employees from disclosing "confidential guest, team member or company information" on social networking sites. Solomon deemed this policy unlawful because it could "reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves." In the same vein, he also deemed a policy that prohibited employees from posting music, photos, videos, quotes or personal information of others without obtaining the owner's permission, including employer logos and trademarks, to be unlawful. The report noted that, "[a]lthough the employer has a proprietary interest in its trademarks, including its logo if trademarked, we f[ind] that employees' non-commercial use of the employer's logo or trademarks . . . would not infringe on that interest."

Several other policies were similarly found to be unlawfully overbroad. One instructed employees to make sure their posts are "completely accurate and not misleading," while another told employees not to post "offensive, demeaning, abusive or inappropriate remarks." Even policies that cautioned employees to "think carefully" about friending colleagues and not to comment on pending legal matters were found violative of the NLRA.

The examples of acceptable policies within the report included those with an advisory tone and those that reiterated rules that could be extended outside the context of social media. For example, the report approved a warning that "you are solely responsible for what you post online," and it also found acceptable a policy stating that, "[b]efore creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance . . . may result in disciplinary action up to and including termination." Similarly, a provision that "harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours from home and on home computers," was found lawful.

Though the recent report certainly is not all inclusive, it does represent a starting point for employers who are trying to decide what language to include within their social media policy. Of course, employers should stay tuned as more guidance from the NLRB, as well as the courts, is sure to come.