On Wednesday, the NLRB General Counsel’s Office issued its second report on social media cases that have been brought to it for advice by regional directors. Our take on the first Report can be found here. As noted in the Board’s press release which links to the Report, the Report covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised. The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.
With respect to the discharge cases, the Board’s press release notes that the Report underscores that "[a]n employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees." Indeed, as we have noted previously, the Board does appear to be gaining some consistency in this regard. Somewhat troubling, however, is the Board’s continued reliance on whether and how co-workers respond to the Facebook post in determining whether the original post is entitled to Section 7 protections. Doing so seems like an easy vehicle for potentially transforming what really was a personal gripe without any obvious intent to initiate or induce coworkers to engage in group action, into what the Board views as concerted activity. On the other hand, the Board hopefully will continue to view negative co-worker responses as evidence of the lack of concerted activity.
With respect to the lawfulness of social media policies, the Board’s press release notes simply that "[e]mployer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees." Though the cases cited in the Report give employers some examples of permissible policy provisions, it is still lacking in more concrete general guidance about what is permissible. In particular, the Report fails to give a clear thumbs up or thumbs down to the effectiveness of a disclaimer in a social media policy that disavows any intent to restrict employees’ rights to communicate with each other regarding terms and conditions of employment.
Two of the cited cases touch on this issue. In the first, the Report refers to an employer’s social media policy that generally tells employees they should avoid discussing themselves as the Employer’s employees unless discussing terms and conditions of employment "in an appropriate manner." The policy also included what the Report refers to as a "savings clause," which provided that the policy "would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities." The General Counsel’s Office concluded in this case that the savings clause did not sufficiently cure the ambiguities in the policy, however, because employees could not reasonably be expected to understand that it "encompassed discussions the Employer deems ‘inappropriate.’" The second case did not address the issue as directly, but in finding the employer’s social media policy unlawful simply stated that it contained examples that could reasonably be read to prohibit protected conduct and "contained no limiting language excluding Section 7 activity from its restriction." This latter phrase, buried in the middle of the Report, may provide the clearest indication to date that the Board might approve a disclaimer to permit provisions such as non-disparagement provisions, that it otherwise would view as prohibited. Of course, at the end of the day, a lot will depend on whether the employer actually enforces the policy against conduct the Board considers to be protected.
For those of you keeping a scorecard, below I have listed the policies that the Report found to be lawful and those it found to be unlawful. Keep in mind that some of the unlawful policies potentially could be saved by either providing examples and context of prohibited conduct or by using an effective disclaimer.
- Prohibition against the use of social media to post or display comments about coworkers,r supervisors, or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.
- Policy providing that the employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws.
- Prohibition against using or disclosing confidential and/or proprietary information, including personal health information about customers or patients, and it also prohibited employees from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations.
- While engaging in social networking activities for personal purposes, employees must indicate that their views were their own and did not reflect those of their employer. Employees were also prohibited from referring to the Employer by name and from publishing any promotional content. (These provisions appeared in a section entitled “Promotional Content,” which included a preface explaining that “special requirements apply to publishing promotional content online.” It defines such content as “designed to endorse, promote, sell, advertise, or otherwise support the Employer and its products and services.)
- Making disparaging comments about the company through any media, including online blogs, other electronic media or through the media.
- In external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.
- General work rules prohibiting "disrespectful conduct" and "inappropriate conversations" (but the General Counsel’s office found the employee’s Facebook posts to be unprotected anyway).
- Prohibition against using social media to engage in unprofessional communication that could negatively impact the Employer’s reputation or interfere with the Employer’s mission, or unprofessional/inappropriate communication regarding members of the Employer’s community (but again finding that the Facebook post was not protected).
- Prohibition against disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department (in the absence of any context or examples of the types of information it deems confidential, sensitive, or non-public in order to clarify that the policy does not prohibit Section 7 activity).
- Prohibition against using the company’s name or service marks outside the course of business without prior approval of the law department (in the absence of clarification that this policy was not directed against by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity).
- Prohibition against publishing any representation about the company without prior approval by senior management and the law department. The prohibition included statements to the media, media advertisements, electronic bulletin boards, weblogs, and voice mail.
- Requirement that social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments regarding the employer and its subsidiaries, and their shareholders, officers, employees, customers, suppliers, contractors, and patients.
- Requirement that employees obtain approval to identify themselves as the Employer’s employees and that those employees who had identified themselves as such on social media sites must expressly state that their comments are their personal opinions and do not necessarily reflect the Employer’s opinions (particularly where it appeared that the rule required this disclaimer every time the employee posted).
- Requirement that employees first discuss with their supervisor or manager any work-related concerns. Failure to comply could result in corrective action, up to and including termination.
- Prohibition against discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.
It should be apparent to all that the Board’s interpretation of what is a lawful or unlawful policy is very nuanced. Where possible, examples or context should be provided for any specific policies that arguably can be interpreted as infringing on employees Section 7 rights. In addition, employers should consider a disclaimer in the policy disavowing any intent to infringe on those rights. Finally, the Board’s consideration of the lawfulness of social media policies appears to be heavily influenced by how those policies are enforced. Employers should seek legal counsel in drafting or reviewing their social media policies and before taking disciplinary action against employees for their social media activity.