On May 30, 2012, the Acting General Counsel of the National Labor Relations Board (NLRB or the Board) issued his third report on social media. The report includes the General Counsel’s analysis of seven recent social media cases and an employer’s social media use policy that the General Counsel concluded was lawful in its entirety. The report aims to provide guidance regarding the application of the National Labor Relations Act (NLRA) to social media policies and discipline under those policies.
In a nutshell, the NLRA gives employees, even those employed at non-unionized workplaces, the right to engage in protected concerted activity. Protected activity includes union activity, and it also includes discussions relating to employees’ terms and conditions of employment. Concerted activity is typically group activity, although some individual activity may be found by the Board to be concerted.
Employers may not “chill” employees from exercising their right to engage in protected concerted activity. One way employers might unwittingly do this is to implement work rules, such as those found in social media policies, that an employee might reasonably construe to prohibit them from engaging in protected concerted activity.
The report includes several cases in which at least part of an employer’s social media policy was found by the General Counsel to be reasonably read by employees to chill their rights under the NLRA and, therefore, unlawful. The General Counsel emphasizes that rules “that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.” Additionally, he stated that “[t]he Board has indicated that a rule’s context provides the key to the ‘reasonableness’ of a particular construction.”
With those general considerations in mind, here are some guidelines that we recommend for employers that are drafting new social media policies or reviewing old ones:
Beware of broad or vague terms in your social media policies. Many common phrases in employer handbooks can fall into this category: “confidential or proprietary information,” “inappropriate” conduct, or “disparaging” comments about coworkers are a few examples. These kinds of broad terms, if left unexplained and undefined, may likely be found unlawful by the Board.
Define your terms. For instance, define “confidential or proprietary information” specifically in terms of the types of information you do not want your employees to disclose (e.g. sales figures, trade secrets, or contract terms with vendors), ensuring that the information you may believe is confidential is not information that the Board may find protected (e.g. disclosure of wages, safety issues, or discipline). Or define “inappropriate” comments to mean comments about another person’s race, sex, religion, or national origin. Draft the language in such a manner that a reasonable employee would view the prohibition on inappropriate comments to include the types of comments that would not be protected under the NLRA (e.g. racial slurs, sexual remarks). Remember, context is key.
A “savings clause” probably will not save you. Provisions that generally state that an employer will not interpret or apply work rules to infringe employees’ rights under the NLRA will probably not save work rules that would otherwise be unlawful. The General Counsel has concluded that employees would not understand that such provisions (usually called “savings clauses”) would permit them to engage in protected concerted activity. Therefore, employers should not rely on a savings clause to rescue their social media policies.
The General Counsel’s latest report on social media provides some guidance to employers, but it comes with important caveats. First, the General Counsel’s three social media reports represent the Board’s current enforcement position; they are not “the law” and they have not been tested in federal court. Second, the social media policy that the General Counsel includes with his third report provides only one example of a lawful policy, but leaves open the question of what else employers might or need to include in a lawful policy. One size does not fit all when it comes to business models or work rules, and because the General Counsel has taken an aggressive enforcement position in his social media reports, we recommend that employers consult counsel to determine how they can draft and implement social media use policies that are consistent with both the General Counsel’s guidance and the employer’s business.