On May 30, 2012, the Office of General Counsel of the National Labor Relations Board (“NLRB”) issued a report examining social media policies and providing specific examples of employer policies that both violated and did not violate the National Labor Relations Act (“NLRA”). The publication is helpful for employers in determining what they should and should not do when drafting social media policies.
Background — The Law
Social media policies can be unlawful if they violate Section 8(a)(1) of the NLRA, which provides that it is an unfair labor practice for an employer to interfere with, restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the NLRA. Section 7 of the NLRA provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representation for their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”
The NLRB uses a two-step process to determine whether an employer maintains a workplace rule that would reasonably tend to chill employees’ exercise of their Section 7 rights. First, a rule is clearly unlawful if it explicitly restricts activities protected by Section 7. If the rule does not explicitly restrict protected activities, it only violates Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
Employers should follow the following “don’ts” when adopting a social media policy:
- Prohibit the Release of Employee Information — Do not tell employees that they may not disclose employee information. Such a provision will be interpreted as prohibiting employees from discussing and disclosing information regarding their own and their co-workers’ conditions of employment.
- Require Employees to Obtain Employer Permission Prior to Posting — Employers should not instruct employees that if they have a doubt about whether information they wish to post is prohibited that they should secure the employer’s permission. Any rule that requires employees to obtain employer permission prior to engaging in Section 7 activities will be found to violate the NLRA.
- Tell Employees to Think Carefully About “Friending” Co-workers — Advising employees to think carefully about “friending” co-workers discourages communications between co-workers and potentially infringes on Section 7 rights.
- Require Employees to Rat on Colleagues — If a social media policy contains any unlawful provision, a requirement that employees report policy violations infringes on the NLRA because encouraging employees to report to management the union activities of other employees discourages employees from engaging in protected activity.
- Instructing Employees to be Professional and Friendly and Not to Discuss Controversial Topics — A policy that instructs employees not to “pick fights” and to avoid topics that could be inflammatory, such as politics and religion, is unlawful as it is designed to caution employees against online topics that could become heated or controversial. Because discussions about working conditions and unionizing have the potential to become as heated or controversial as discussions about politics and religion, the NLRB may consider such a provision in a social media policy to violate the NLRA.
- Mandate That Employees Secure Permission Before Reusing Others’ Content or Images — Although employers are well within their rights to instruct employees to respect copyright and intellectual property laws, employers may not instruct employees that they must obtain permission before reusing others’ content or images. The NLRB will find this type of restriction to interfere with employees’ protected rights to take and post pictures of employees engaging in protected conduct such as picketing or employees working in unsafe working conditions.
- Tell Employees to Avoid Harming the Company — Provisions in social media policies that require employees to avoid harming the image and integrity of the company are unlawfully overbroad because they could be construed to prohibit criticism of the employer’s employment policies or treatment of employees.
- Prohibit Employees From Communicating With the Media or Other Third Parties — Employers can certainly prohibit employees from providing statements on their behalf to the media or speaking at conferences on behalf of the employer, but employers may not simply instruct employees, for example, not to speak with the press, blog or contact governmental agencies.
What is an Employer to Do? The “Dos” of Social Media Policies
With so many “don’ts,” what is an employer to do? Employers should include in their social media policies clear and simple limiting language explaining that the policy does not restrict employees from discussing their wages and working conditions. However, a mere statement that the policy does not infringe on employees’ Section 7 rights, will not save an otherwise unlawful policy because these disclaimers mean nothing to the average layperson. Employers must also be certain that they do not include any provisions discussed under the “don’ts” section above as even well-drafted limiting language cannot cure unlawful provisions within the policy.
Consult With Counsel
Given the constantly changing legal environment related to social media policies, we suggest employers consult with counsel before finalizing any such policies for distribution to employees.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:Fischer-DebraAdkins-JohnAguilera-JacquelineRodriques-LouisCooper-JennyFujimoto-MieSchwarz-DouglasSeverson-James