The National Labor Relations Board has been at the forefront of debates concerning restrictions on employers’ use of social media since 2010, when it issued a highly publicized complaint against American Medical Response of Connecticut based on AMR’s discharge of an employee for posting disparaging comments about a supervisor on her Facebook page from her home computer. Since then, the NLRB has investigated a number of employers based on charges by employees that they were disciplined or discharged for violating social media policies. Many of those investigations have involved nonunion employers.
On May 30, 2012 the NLRB’s Acting General Counsel (the “AGC”) issued the latest in a series of reports regarding the AGC’s analysis of investigations of charges involving employees’ use of social media. For the first time, the AGC focused such a report primarily on the specific terms of social media policies, commenting on both permissible and prohibited provisions, rather than discussing general policy considerations in the course of reporting on the handling of cases involving the use of social media. Also for the first time, the report included the full text of a policy that it found to be lawful. That policy was an amended policy issued by Walmart. The report, including the Walmart policy, which is at the end of the report, can be accessed here.
The focus of the NLRB in reviewing cases involving enforcement of social media policies is whether the policies interfere with employees’ rights under Section 7 of the National Labor Relations Act. Section 7 provides that employees have the right to organize “and to engage in other concerted activities for . . . mutual aid or protection. . . . ” To be protected concerted activity, two or more employees may act jointly or one employee may act on behalf of others. The action must also relate to employment terms or working conditions.
Section 7 rights apply to employees in nonunion as well as union settings. However, they do not apply to managerial or supervisory employees, as such employees are not covered by the National Labor Relations Act.
It is well established that if a work rule tends to chill employees in their exercise of Section 7 rights, it is unlawful. In determining if a work rule would do so, the NLRB looks to whether it expressly restricts Section 7 activities. Even if the policy does not expressly restrict Section 7 activities, the Board would consider it to be unlawful if it were promulgated in response to union activity or if it were applied to restrict Section 7 rights. Most importantly for the review of social media policies, the Board would also consider a policy to be unlawful if employees would reasonably construe the policy to prohibit Section 7 activity.
When a rule is ambiguous as to whether it restricts Section 7 activity, the NLRB’s position is that it may reasonably be construed to limit Section 7 activity, and therefore it is unlawful. By contrast, when a rule is written more specifically, such as by including examples of prohibited activity conduct that would clearly not involve the exercise of Section 7 rights, the Board will be more likely to find that the examples clarify that the rule does not chill employees in their exercise of Section 7 rights.
The AGC’s report reviewed how the AGC analyzed the social media policies in seven cases. In six of those cases, the AGC found that the rule was overly broad in at least some respect, although in some cases he also identified some permissible portions of otherwise overly broad rules. The following are common social media policy provisions that were addressed by the AGC in the context of the cases reviewed in the report:
- Confidential Information: Social media policies commonly prohibit the disclosure of confidential information. The AGC criticized a number of policies that included general admonitions to maintain the confidentiality of confidential information. The Board expressed concern that employees may construe references to confidential information to include employee compensation information, which employees covered by the National Labor Relations Act are permitted to share, and even information concerning the employer’s business performance, on the basis that such information is relevant to bargaining with the employer. By contrast, in the Walmart policy, the company defined “trade secrets” that should not be disclosed in a way that clearly did not implicate employee compensation information. In the AGC’s judgment, that definition provided sufficient specificity to make it permissible for the policy to prohibit disclosures of trade secrets and confidential information.
- Securities Disclosure Provisions: In conjunction with admonitions not to disclose confidential information, some public company social media policies state that employees are prohibited from posting “material non-public information,” a prohibition which is presumably intended to assist in compliance with securities law disclosure standards. The AGC found such statements, “in the absence of clarification,” to be so vague as to risk chilling employees in their exercise of Section 7 rights. The Walmart policy, by contrast, which the AGC found to be lawful, directs employees to “respect financial disclosure laws,” states that it is illegal to “give a ‘tip’ on inside information” and references the company’s insider trading policy.
- Respectful Conduct: Many social media policies require that employees’ communications relating to the employer be “respectful” and/or “appropriate.” Such general admonitions are treated by the AGC as chilling employees’ criticisms of employment policies. However, when such social media policy provisions clarify that “respectful” conduct involves avoiding discriminatory, bullying, harassing or retaliatory statements, the AGC found that such examples provide sufficient clarification to support the lawfulness of the policy.
- Prior Authorization: Some social media policies require employees to obtain prior authorization before making any comments relating to the employer or to obtain prior authorization if the employee is in doubt about the permissibility of a possible posting. The AGC observed that the Board’s longstanding policy is that it is impermissible to require employees to obtain prior authorization before making statements about the employer. However, the AGC expressly approved a narrower policy provision requiring employees to receive prior authorization before posting messages either in the employer’s name or that could reasonably be attributed to the employer.
- Trademarks: Consistent with prior interpretations of the National Labor Relations Act, the AGC stated that prohibitions on the use of trademarks are unlawful since trademarks may be used by employees publicizing their concerns about working conditions.
- Legal Matters: The AGC also found that a prohibition on employee commentary on legal matters was unlawful because it could restrict employee commentary on legal issues between employees and the employer.
- Savings Clause: Many of the policies that the AGC found to be overly broad included a disclaimer that expressly provided that the policy was not to be interpreted to interfere with employees’ rights under the NLRA. The AGC consistently found that such savings clauses do not cure other overbreadth in social media policies.
In short, the AGC’s report reflects that social media policies can be found to violate Section 7 rights when addressing subject areas that would appear to be of central concern to employers, such as maintaining the confidentiality of confidential information. However, the report also reflects that through careful drafting, including providing specificity concerning areas of prohibited conduct, an employer can demonstrate that its policy does not chill Section 7 rights.
Developing a Social Media Policy
The AGC’s report finds a number of common social media policy provisions to be impermissible. However, it also provides some guidelines about what an employer can do to develop an effective social media policy that does not undermine its legitimate interests. In light of the AGC’s report, employers that prepare or amend their social media policies should consider the following:
- Use examples to illustrate the intended reach of prohibitions, particularly in addressing prohibitions on disclosing confidential information.
- Reference other employer policies, such as insider trading policies and confidential information policies, to elaborate further on what is prohibited and, at least implicitly, indicate what is not.
- Include a provision requiring employees to receive prior authorization before posting messages either in the employer’s name or that could reasonably be attributed to the employer.
- Consider the Walmart policy as a model for satisfying possible NLRB concerns.
- Despite the AGC’s findings about some brief savings clauses, consider using a savings clause to describe more fully the types of communications by nonmanagerial and nonsupervisory employees that are permissible.
- Consider establishing more stringent limitations on social media communications by managerial and supervisory employees, as they are not within the ambit of Section 7’s coverage.