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February 10, 2012

NLRB Issues Second Report on Social Media Policies

On January 24, 2012, the Acting General Counsel of the National Labor Relations Board (“NLRB” or the “Board”) issued a second report summarizing 14 new cases involving employee use of social media and employers’ social media policies.  This report updates the General Counsel’s August 2011 report, discussed in our August 22, 2011 Client Alert.

The Acting General Counsel’s second report confirms the NLRB’s position that social media policies that potentially interfere with an employee’s ability to engage in protected concerted complaints violate Section 7 of the National Labor Relations Act (“NLRA”). 

       The second report discusses several cases in which the Board found that social media policies were overbroad.  In one such case, the NLRB considered the social media policy of a home improvement store which stated that employees should generally avoid disclosing their employment with the company on social media, unless discussing terms and conditions of employment in an “appropriate” manner.  The policy also had a “savings clause” which stated that the social media policy would not be applied to interfere with employees’ Section 7 rights.  Despite the “savings clause,” the NLRB found the policy unlawful because the policy implied that “inappropriate” discussion of employment conditions using social media was prohibited, and employees could not reasonably know that the “savings clause” covered such “inappropriate” discussions. 

In another case, the Board held that an employer’s social media policy that broadly prohibited the disclosure of confidential, sensitive, or non-public information was unlawful.  The policy failed to give a context or examples of what is considered confidential, sensitive or non-public, and failed to clarify that the policy does not prohibit employees from engaging in Section 7 activity.

         In contrast, the NLRB found that an employer’s social media policy that prohibited the use of social media for specific conduct was lawful.  The social media policy prohibited the use of social media to “post or display comments about coworkers or supervisors of the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class.”  The Board found that the employer’s social media policy was lawful because the employer’s policy would not be interpreted to restrict Section 7 activities, the  media policy prohibitions are part of a list of clearly egregious conduct, and there was no evidence that the prohibitions had been used to restrict Section 7 activity. 

         While the second report provides examples of lawful social media policy provisions, the report lacks general guidance as to what constitutes a permissible social media policy under the NLRA. 

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Social media policies must be carefully crafted to comply with the NLRA.  Generally, social media policies should avoid overly broad language, ambiguous words, and undefined terms.  While “savings clauses,” which state that the policy will not be applied to interfere with an employee’s Section 7 rights, should be used, they will not be sufficient to render a policy lawful where other terms of the policy conflict with a savings clause.  For example, the phrase: “only appropriate discussions regarding wages are permitted” is too vague and would be found to be unlawful by the NLRB with or without a savings clause.

We remind all employers that Section 7 of the NLRA applies to non-union as well as to union employees.

         Please do not hesitate to contact us should you have any questions on drafting or enforcing social media policies.