National Labor Relations Board Issues Social Media Policy Report
/ 29.Jun, 2012
On May 30, 2012,the National Labor Relations Board (NRLB) (http://www.nlrb.gov) issued a social media report (http://mynlrb.nlrb.gov/link/document.aspx/09031d4580a375cd) summarizing the Acting General Counsel’s view on social media compliance with Sections 7 and 8 of the National Labor Relations Act (NLRA) (http://www.nlrb.gov/national-labor-relations-act). In addition, this report provides guidance to assist employers on creating a social media policy that would be lawful under the NLRA.
Section 7 of the NLRA defines an employee’s protected activity and gives employees various rights including the ability to participate in self-organization through labor organizations and collective bargaining. Section 8 defines an employer’s unfair labor practices, including the prohibition of interference with an employee’s exercise of his Section 7 rights.
In its report, the Acting General Counsel stated that ambiguous policies relating to Section 7 rights that do not clearly state that that the policy will not interfere with Section 7 rights are unlawful. Social media policies relating to Section 7 that have an ability to chill the exercise of Section 7 rights will be deemed unlawful under the NLRA.
The Acting General Counsel reviewed a total of seven policies in its report. Only one was found to be entirely lawful. Six were deemed unlawful, even though they contained savings clauses stating that the policy had no intent to interfere with Section 7 rights. In finding the six policies unlawful, some or all of the provisions were determined to be unlawful and therefore violated the NLRA. The lawful policy was deemed to be appropriate because of its extensive use of examples. The Acting General Counsel noted that rules which clarify or restrict their scope through examples so that they may not be reasonably construed to encompass protected Section 7 activity are lawful.
Examples of portions of the unlawful policies included:
• Provisions relating to the prohibition of confidential company information through social media
• Provisions requiring posted information about the employer to be completely accurate and not misleading
• Provisions which prevent employees from posting content without first obtaining the owner’s permission
• Provisions preventing the use of the employer’s logo or trademarks
• Provisions banning offensive, demeaning, abusive, or inappropriate comments
• Provisions recommending that employees think carefully before friending co-workers
• Provisions stating that employees should report unusual or inappropriate internal social media activity
• Provisions prohibiting the sharing of personal information relating to other employees, customers, providers, and business partners
• Provisions forbidding employees from publicly stating opinions about work satisfaction and conditions
Portions of the lawful provisions included:
• Provisions stating that employees be cautious when revealing confidential information
• Provisions asking employees to not post product safety performance information
• Provisions banning online harassment, discrimination, bullying, and retaliation
• Provisions requiring that employees state that their posts are their own and do not represent the employer’s positions
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