On May 30, 2012, Acting General Counsel of the National Labor Relations Board (“NLRB”) Lafe E. Solomon issued a new report on employees' social media use, describing several social media policies and analyzing whether the policies unlawfully interfered with the rights of workers under the National Labor Relations Act (“NLRA”).
Overbroad Social Media Policies Are Unlawful under the NLRA
In the report, Solomon confirmed that overbroad company rules and policies violate the NLRA where employees would reasonably interpret them as limiting their exercise of rights guaranteed by federal labor law.
Solomon cited the following policies as overbroad and unlawful:
- “You also need to protect confidential information when you communicate it. . . . Never discuss confidential information at home or in public areas.”
- “If you engage in a discussion related to [Employer], . . . you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site.” Nonpublic information was defined to include information “related to” the company's financial performance, as well as personal information about employees.
- “Don't pick fights” and reminding employees to communicate in a “professional tone” without making “objectionable or inflammatory” comments.
Even though some of these policies had a “savings clause,” stating that they were not intended to cover rights protected by the NLRA, Solomon still considered the policies unlawful.
Carefully Drawn Restrictions Are Lawful
Solomon did deem some restrictions permissible, particularly when the policy contains specific examples of prohibited conduct, so that employees understand that the policy does not prohibit protected activity under the NLRA.
For example, one prohibition against “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace . . . even if it is done after hours, from home and on home computers,” was considered lawful because the rule gave employees an illustrative list of prohibited acts, such as bullying and discrimination.
Likewise, while a specific policy instructing employees to be “fair and courteous” when posting online material could be overly broad, Solomon concluded that the policy provided sufficient examples of plainly egregious conduct, so that employees would not reasonably construe the rule to prohibit protected conduct.
Solomon specifically commented on Wal-Mart’s revised social media policy, finding it lawful in its entirety. A copy of this policy is available here.
This new guidance provides additional insight into the NLRB’s treatment of social networking policies. Employers should analyze their own policies in light of this instruction and develop a social media policy that provides clear examples of what is prohibited.