The National Labor Review Board (NLRB) has released additional guidance on employee policies that restrict the use of social media. This is the third report issued by the NLRB in recent years. The NLRB has taken an interest and continues to take an interest in when employers can limit employee social media activity.
In this third report, six of the seven policies considered by the NLRB didn’t pass muster. To avoid potential liability, employers may have to once again fine-tune their social media policies.
Non-union employers must take note that the National Labor Relations Act (NLRA) applies to all private employers-not just those that have union employees.
This particular NLRB report provides examples of several provisions that it deems unlawful. In almost all cases, the NLRB found the policy provisions to be overbroad, and, therefore, could be construed to “chill” employees’ rights to engage in protected activities under Section 7 of the NLRA such as discussing wages and working conditions with co-workers. Example of policies the NLRB said were overbroad include:
- Policies prohibiting “disparaging or defamatory” remarks;
- Policies banning the release of confidential customer, employee or company information (this example provided by the NLRB has been controversial and many followers predict it will be challenged in court);
- Policies broadly banning offensive, demeaning, abusive, or inappropriate remarks; and
- Policies prohibiting all use of social media during working hours.
In terms of what types of policies will pass scrutiny, the NLRB General Counsel highlights that rules “that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.”
The report goes so far as to provide an example of a social media policy that did pass muster. This particular policy provided that employees should know and follow the rules. Be respectful. Be honest and accurate. Post only appropriate and respectful content, and do not retaliate. However, employers should be careful about simply adopting the policy cited by the NLRB. In most cases, one size does not fit all, and employers will need to create a social media policy that meets its own unique business needs.
Based on this new report, employers should again review their social media policies to ensure that they do not unduly inhibit or restrict their employees’ rights to engage in protected activity under the NLRA. As we have previously mentioned on this blog, the NLRB has been aggressive in its enforcement of the NLRA when it comes to social media policies. Therefore, it is imperative to work with an experienced employment attorney to craft a policy that protects your company, but will not lead to liability.
Beth Lincow Cole is committed to helping employers comply with federal and state employment law and avoid potential business-wrecking lawsuits. If your company needs guidance regarding its social media policies and procedures, contact employment law attorney Beth Lincow Cole.
