Understanding The NLRB’s Latest Guidance On Social Media Policies– It Likely Applies to You
Last week, the National Labor Relations Board (“NLRB”) issued its latest guidance on employer social media policies. Over the past few years, the NLRB has taken the position that “overbroad” social media policies unreasonably and unlawfully prohibit employees from engaging in protected activities under Section 7 of the National Labor Relations Act (“NLRA”). Importantly, Section 7 applies to both unionized and non-unionized workplaces. So, if you are a non-unionized employer, read on — this applies to you, too!
Section 7 protects the right of employees to engage in “concerted activity” for the purpose of collective bargaining or “other mutual aid or protection.” What could this possibly have to do with Facebook and Twitter? Well, courts and NLRB decisions have ruled that Section 7 protects employees who complain to each other or otherwise discuss the terms and conditions of their employment – even while using social media. This can be a major problem for employers when they discipline or terminate an employee for posting negative things about their company using social media. Confused employers point to their social media policies (which usually prohibit disparaging communications by employees) and say the policy justifies discipline, because employees cannot violate company policy, right? “Not so fast,” says the NLRB. These social medial policies may violate Section 7 according to the NLRB.
If all of this seems a little confusing, you are not alone. In fact, this most recent guidance from the NLRB on social media is actually the third attempt by the Board since August 2011 to clarify and explain its position regarding social media policies (the Board’s previous guidance is available here and here). So, where does this leave you, the diligent employer, who wants to implement a social media policy that protects the company’s interests and rights but that can also withstand the scrutiny of the NLRB? Here are a few suggestions:
- Do not prohibit employees from publicly criticizing their employer. The NLRA protects employees who say many terrible things about their working conditions or terms of employment, even when those comments are publicly available on social media like Facebook. It may be very unprofessional, but employees can engage in this sort of behavior on their own time. Don’t draft social medial policies that prohibit public criticism.
- Do not draft policies that can be interpreted to prohibit sharing of salary information. Section 7 covers terms of employment, including salary and wage information. So, employers cannot prohibit employees from discussing their salary, even on social media. (This issue of prohibiting discussions of pay has been a Section 7 violation long before social media existed. Social media has just brought it to more employers’ attention.)
- Confidentiality provisions must be carefully drafted. Many social media policies instruct employees to refrain from sharing confidential information and trade secrets over social media websites. The Board’s recent guidance found that several such policies violated the NRLA because their definition of confidential information was too broad, and could reasonably be construed to include information protected by Section 7. Frankly, the Board’s position on this issue is complicated and inconsistent in several respects (but that’s not a first for the Board). The best advice is to have legal counsel review any social medial policy to ensure that provision is narrowly-tailored to avoid potential violations of Section 7.
You can view the Board’s recent guidance in full here. As you will see, most of the policies it examines are found to violate Section 7 in some way. (Surprise!) What do you think of the Board’s position on social media policies? Does your company have a social media policy? If it doesn’t, it probably should – but make sure it is both effective and lawful. Please share your comments and thoughts on this evolving issue.