“If you comment about the Company on the Internet, you must say that your views are not those of the Company.”
“Do not use the Company’s logo or other trademarks on social media.”
“You may not discuss the Company’s confidential business plans on the internet.”
Do you think these restrictions pass muster under National Labor Relations Board decisions?
Employer efforts to craft social media and other handbook policies to comply with recent NLRB cases and guidance is a little like playing whac-a-mole. No matter how many you smack down, another pops up, and it seems you just can’t win.
First, a quick review of the issue: Section 7 of the National Labor Relations Act gives employees the right to gripe among themselves about wages and other terms and conditions of employment. A workplace policy that says employees may not discuss wages violates that right. In fact, any policy that restricts an employee’s communication about the workplace might violate Section 7, depending on how broad the restriction is. Increasing efforts by employers to control employee communications away from work, specifically on social media, have resulted in the NLRB deciding cases and issuing guidance in recent months finding many of these policies illegal. In fact, it is becoming increasing difficult to keep track of what the NLRB will consider proper or improper.
An NLRB administrative law judge issued a decision recently finding that various policy provisions at one company violate Section 7 rights. Briefly summarized, the policies found to be illegal did the following:
- told employees that if they comment about the Company on social media, they are to include a disclaimer stating that their comments do not necessarily reflect the views of the Company;
- told employees they may not use the Company’s trademark protected information, such as the Company logo, in on-line communications;
- told employees they should not include in on-line communication information about confidential business plans;
- told employees not to engage in inappropriate behavior on-line that would be a violation of Company policies if engaged in at work, such as harassment.
How could these things possibly violate the law? Let’s take a look at each one separately.
The disclaimer language:
The Judge found that requiring employees to “disclaim” that the Company’s opinions are not being stated every time they comment on-line about the Company is too great a burden on the exercise of Section 7 rights. The Judge also felt it was improper to require employees commenting about their working conditions to include a message about the employer, finding that to do so is intrusive on Section 7 rights. Pointing to a general principle in some of the Board’s earlier cases, the Judge said that restrictions on employee on-line communications should be no more strict than restrictions on conversations “at the water cooler.” With all due respect to the NLRB and the Judge, it seems that analogy fails to recognize the very significant difference in the potential impact on the Company of inter-personal conversations versus on-line communications, which could reach hundreds or thousands of recipients. Also interesting to note is that the employer, arguing for the defensibility of the restriction, pointed to earlier NLRB advice memos stating that requiring disclaimers like this would be considered alright. The Judge ruled that the advice memos were just the opinion of the NLRB’s top lawyer and not binding precedent. One mole down, another pops up.
Logos and Other Trademark Information:
This part of the Judge’s decision is not really news. The Board has ruled in the past that employers should not place blanket restrictions on use of things like logos because the law protecting trademarks is not quite that broad. For example, it is not technically illegal for employees to reproduce a company logo as long as they are not doing so for commercial purposes. Therefore, the NLRB concludes it is improper to prohibit all employee use of logos or other trademarks. A policy prohibiting use of logos or similar trademarks must be written narrowly to prohibit only the use for profit or other purposes that are protected under the law.
Confidential Business Plans:
Apparently trying to craft a policy consistent with earlier NLRB guidance, the employer in this case narrowed the restriction on disclosure of confidential information by including a list of examples. The idea is to list representative examples so that employees do not think that wages and working conditions are considered “confidential information.” After giving a few examples of confidential information, such as pricing information and customer lists, the company also included a statement prohibiting circulation of “rumors or speculation about the company’s business plans.” The Judge concluded that the phrase “business plans” was too broad. After all, he reasoned, business plans could include plans or rumors of plans for business transfers, closures, lay-offs, etc. In this Judge’s opinion, it is permissible for employees to disclose information about these sorts of company plans, since they affect working conditions, such as job security. If that does not trouble you enough, consider that in other cases, the Board has upheld very broadly worded restrictions such as a rule against spreading “harmful gossip.” So now there are cases upholding a broad restriction on spreading harmful gossip but also saying that you cannot specifically prohibit spreading rumors about business plans. More moles.
The employer’s policy prohibiting inappropriate conduct on-line, such as harassment, was found illegal because it was written very broadly. It prohibited “disparaging” company employees and executive leadership. That language prohibits you, for example, from griping about a supervisor you think is unfair. It is possible this part of the policy would have passed NLRB scrutiny if it had not been for those broad provisions.
This decision illustrates once again how very important it is for companies to review their policies that restrict employee communications both at and away from work. If a policy is found by the NLRB to be illegal, the Board will require that it be rescinded and will require the employer to communicate to the workforce that it was determined to be illegal. My “whac-a-mole” analogy notwithstanding, employers are well-advised to make their best good faith efforts to draft and enforce these policies narrowly and consistent with NLRB restrictions.