Employers Beware: The NLRB's Acting General Counsel Offers Additional Guidance on Social Media Issues

As we have discussed in previous legal updates—see the list of related legal updates on the left—the National Labor Relations Board (NLRB or the "Board") has been very active in prosecuting employers, union and non-union alike, who violate employees' Section 7 rights under the National Labor Relations Act ("Act") based upon those employees' postings on social media sites.

On January 24, 2012, the NLRB's Acting General Counsel released another report on the agency's social media cases.  The report reaffirmed that the Board would find social media policies that curtailed co-workers' ability to discuss their displeasure over such things as wages and working conditions online to be unlawful.  The General Counsel's report can be found here.

Section 7 of the Act says that all workers, not just workers in labor unions, may engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."  In five of the seven employee termination cases discussed in the General Counsel's report, the NLRB found that the company's social media policy, or other related policy, was unlawful.

What follows are examples of social media policies, or other related policies, that the General Counsel found to be unlawful:

• A social media policy that provided no guidance on what constituted the prohibited "inappropriate postings" on social media sites.  The NLRB felt that this allowed employees to reasonably interpret the rule to prohibit protected concerted activities.
• A work rule prohibiting "inappropriate conversation," whether in person or online, was unlawful when it provided no guidance on what constituted the prohibited "inappropriate conversation."
• A company policy that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public nature using company resources to those outside the company was unlawful when it failed to give examples of such violations.
• Two policies prohibiting employees from making disparaging comments about the company or from engaging in unprofessional conduct online were found to be unlawful when the NLRB felt such policies "would reasonably tend to chill employees in the exercise of their Section 7 rights."

The NLRB found lawful a policy that prohibited the use of social media to post or display comments about co-workers, supervisors, or the employer that were vulgar, obscene, threatening, intimidating, harassing, or in violation of the employer's anti-discrimination and anti-harassment policies.  The NLRB stated that forbidding "statements which are slanderous or detrimental to the company" that appeared on a list of prohibited conduct including "sexual or racial harassment" and "sabotage" would not be reasonably understood to restrict Section 7 activity."

The NLRB also found lawful a policy that required employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws.  The NLRB stated that employees would reasonably "interpret the rule to address only those communications that could implicate security regulations."  The NLRB also found lawful that company's policy prohibiting employees from using or disclosing confidential and/or proprietary information, including personal health information about customers and patients.  The NLRB stated that "employees would reasonably understand that this rule was intended to protect the privacy interests of the Employer's customers and not to restrict Section 7 protected communications."

All employers should review their policies to determine if they run afoul of the Act.  As noted above, the Board takes the position that an employer's social media policies should contain a clear discussion of what constitutes the prohibited behavior so that employees know that protected concerted activities are not included in the policy's scope.  Although employers can still terminate an employee for work-related posts that do not discuss employees' terms or conditions of employment (for example, posts about disagreements with co-workers over personal issues), employers should review all potential terminations that are based on social media postings to ensure that the offending posts do not implicate an employee's right to discuss protected concerted activities online.

If you have any questions about the NLRB's views on social media policies, or any other labor matters, please contact any of the Faegre Baker Daniels labor lawyers.