The National Labor Relations Board issued a new report discussing seven social media cases handled by the agency.  This report is the third released by the NLRB regarding social media in the last year, and focuses on the policies of seven companies.  The report provides guidance to employers who have social media policies or are considering adopting them.  Of the seven cases detailed in the report, the NLRB found portions of the employers’ social media policies to be unlawful in all but one of the cases.

Section 7 of the National Relations Act gives both unionized and non-unionized employees the right to discuss the terms and conditions of their employment with co-workers and others.  Therefore, when evaluating an employer’s social media policy, the key question the NLRB will look at is whether the policy chills or restricts employees’ ability to discuss working conditions with one another.  Consequently, in the six cases where the NLRB found the employers’ social media policies to be unlawful, the policies contained ambiguous, overly broad language that could be interpreted as restricting employees’ ability to discuss their working conditions with co-workers or with the public.  The policies also contained no limiting language or provided any context that would clarify to employees that the policies did not restrict such rights.  

The report also discusses the revised Wal-Mart policy the NLRB deemed lawful and includes it as an attachment.  The NLRB found the policy lawful because it is unambiguous and provides examples of prohibited conduct so that, in context, employees would not reasonably read the policy to prohibit Section 7 activity. 

The NLRB’s report with its specific analysis of various employer social media policies offers the following guidelines for employers with existing social media policies or for employers in the process of adopting such policies:

1. Confidentiality provisions should include clarifying and restricting language with examples of clearly illegal or unprotected conduct to preclude the possibility that employees will believe the language to include protected activity.  For example, employees may be precluded from disclosing trade secrets, information subject to financial disclosure laws, and attorney-client privileged communications as they do not have a right to disclose this kind of confidential information.  When drafting language regarding confidentiality, employers should also include examples of what they consider to be trade secrets or financial information.  For example, the term “financial information” could be interpreted to include employee salaries which employees have the right to discuss under Section 7.  However it is illegal for employees to give “inside information” to others for purposes of buying or selling stocks.
2. Language that prohibits employees from posting material that could be viewed as malicious, obscene, threatening or intimidating should also include examples of such conduct.  The NLRB found the portion of Wal-Mart’s policy entitled “Be Respectful” lawful because it gave examples of prohibited conduct.  For example, the policy included language stating “Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”  Similarly, language that prohibits bullying or retaliation would likely be upheld and found not to restrict Section 7 activity.
3. Employers may limit discriminatory remarks, harassment and threats of violence.  Because this type of conduct is also illegal under laws such as Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act, employers may properly limit such conduct on social media provided that such language is not being used to limit Section 7 conduct. 
4. Broad language discouraging employees from “friending” co-workers was found unlawful because it could be interpreted as restricting employees from discussing the terms and conditions of their employment with each other.
5. Employers may not instruct employees to report unusual or inappropriate social media activity.  NLRB cases have held an employer violates the National Labor Relations Act by encouraging employees to report union activities to management. 
6. An employer also has a legitimate need to protect itself from unauthorized postings that could be attributed to it.  Therefore, an employer may include a provision in its social media policy requiring employees to receive preauthorization before posting a message that is either in the employer’s name or that could be reasonably attributed to it.  An employer may also prohibit employees from attributing any opinions or statements to it on social networks.  Finally, the NLRB has also found lawful language requiring employees to explicitly state in their posts that the message reflects their own opinion, and not that of the employer. 
7. Employers may instruct employees to not use social media while on work time or on employer-owned equipment unless such use is work-related and authorized by the employer.  Employers may also prohibit employees from using their work e-mail addresses to register on social networks, blogs or other online tools for personal use. 

Because the NLRB’s report provides specific examples of language in social media policies it found to be lawful or unlawful, employers are encouraged to review the report when preparing their  own social media policy.  We also encourage employers with existing social media policies to review their policies for compliance with the most recent NLRB findings.  Employers may contact one of our attorneys at any of our four offices with any questions.