Law Sections

Social Media Policies

NLRB Rules Most Proposed Provisions Are Too Broad in Nature

ROSEMARY J. NEVINS

Rosemary J. Nevins

In their quest to protect company interests and private information, many employers have developed social media policies restricting the use of such media by their employees with regard to workplace matters.
Responding to the increasing number of challenges to such policies, the National Labor Relations Board (NLRB) has recently issued its third report involving its review of the social media policies of seven different companies. Upon completing its review, the board determined that several of the policy provisions involved in six of the seven cases were overbroad and therefore, unlawful under the National Labor Relations Act (NLRA). The seventh case involved a revision of that company’s social media policy, which the board deemed to be lawful under the act.
In its two earlier reports the board’s focus was on notifying employers that their social media policies should not be so all encompassing as to ban employee activity protected under federal labor law. The board cautioned that an overly broad policy could potentially violate Section 7 of the NLRA, which protects an employee’s Section 8(1)(1) right to engage in concerted activities for the purpose of mutual aid and protection. Interestingly enough, the board determined that this caveat applies to both union and non-union employers alike.
In determining the lawfulness of each policy’s provisions, the board first analyzed whether the policy, as written, would “reasonably tend to chill employees” in the exercise of their rights under the NLRA by specifically restricting those rights. Absent such an explicit restriction, the board then focused on the following considerations:
• Whether an employee would reasonably conclude that the policy does prohibit protected activities;
• Whether the employer adopted the policy in response to union activity; and
• Whether the employer has applied the policy in such a manner as to restrict protected activity.
Examples of Unlawful Provisions
Among the many provisions deemed to be unlawful as written in the policies reviewed are the following:
• A provision including a general condemnation of posting “offensive, demeaning, abusive or inappropriate remarks on-line.”
Reason: Such a provision is overly broad and might potentially restrict an employee’s protected right to criticize its employer’s treatment of employees.
• A provision requiring the employee to ensure that information shared about the company is completely accurate, not misleading, and non-public.
Reason: Such a provision would be reasonably interpreted to apply to discussions about a criticism of the employer’s treatment of its employees.
• A provision preventing an employee from commenting on any legal matters, including pending litigation or disputes.
Reason: Such a provision restricts employees from discussing the protected subject of potential claims against the employer.
• A provision instructing employees not to share confidential information with co-workers — for example, their rate of pay, work schedules, etc., among other topics unless those co-workers need the information to do their jobs.
Reason: Employees would construe such a provision as prohibiting them from discussing information regarding the terms and conditions of their employment.
• A provision to prohibit employee’s release of confidential guest, team member, or company information.
Reason: This provision would 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 other employees.
• A provision threatening legal action, including criminal prosecution, in addition to corrective action up to and including termination, where an employee violates any portion of the employer’s policies regarding confidential information.
Reason: Since the rules were found to be unlawful, the reporting requirement was also unlawful.
• A provision that cautions employees not to post information about which they are uncertain and to resolve any doubts as to whether they should post that information by checking the designated personnel.
Reason: Any rule that requires employees to secure permission from an employer as a pre-condition to engaging in Section 7 activities violates the Act.
• A provision that cautions employees to treat everyone with respect by refraining from posting offensive, demeaning, abusive, or inappropriate remarks on-line and reminding them that they are expected to abide by the same standards of behavior in the workplace as well as in their social media communications.
Reason: The first part of this provision proscribes a broad spectrum of communications that would include protected criticism of the employer’s labor policies of treatment of employees. The remaining portion is ambiguous as to its application to Section 7.
Among other findings, the board posited that even a “savings clause” stating that the policy would not be construed and applied in a manner that improperly interferes with employees’ rights under the act will not pass muster.
Lawful provisions include those that are clearly written and limit their application to examples of specific illegal or unprotected conduct that would not reasonably be construed to be protected activity.
One example of such a provision is one proscribing “harassment, bullying, discrimination, or retaliation that is impermissible in the workplace, and to be impermissible between co-workers online, even if it is done after hours, from home or on home computers.”
Similarly, it would be lawful for an employer to proscribe employees from posting information online in the employer’s name or in a manner that could reasonably be attributed to the employer without written authorization from the designated company agent.
Err on the side of caution and carefully review your social media policies.

Rosemary J. Nevins, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected].