Employer Social Media Policies: General Counsel for the National Labor Relations Board sheds some light on what is permissible and what goes too far

The General Counsel for the National Labor Relations Board (“NLRB”) issued a third report on social media cases, this time focusing exclusively on policies governing the use of social media by employees.  This report is very informative for worker advocates, though it is important to keep in mind that its determinations, while persuasive, are not binding on the Board or courts.

There are several important takeaways in the report.  The most important point, repeated throughout, is that well-established Board law does not change simply because worker activity occurs through social media instead of at the office “water cooler.”  The basic rule to follow is, if employees would reasonably construe language in an employer rule to prohibit Section 7 activity, that work rule is unlawful.  Section 7 activity includes, for instance, the right to discuss wages and working conditions with co-workers.  Even very heated or passionate discussions about wages and working conditions are protected, so long as they do not rise to the level of promoting violence or other unlawful activity.

Along these lines, any employer rule that requires employees to get permission from an employer before engaging in Section 7 activities violates the National Labor Relations Act.  Thus, an employer rule stating, “When in doubt about whether the information you are considering sharing falls into one of the above categories, DO NOT POST.  Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea” was unlawful as far as it prohibited comments regarding wages and working conditions, or other Section 7 activity, without obtaining permission from management.  Rules that made it appear workers could not post photos of employees in a picket line or employees working in unsafe conditions, were also unlawful for the same reason according to the report.

The report found an employer rule warning employees to “avoid harming the image and integrity of the company” unlawful because employees would reasonably construe this rule to prohibit protected criticism of the employer’s labor policies or treatment of its employees.

An employer rule that appeared to prohibit employees from expressing their personal opinions to the public regarding “the workplace, work satisfaction or dissatisfaction, wages, hours or work conditions” was unlawful because employees would interpret the rule to prohibit them from sharing terms and conditions of employment with non-employees.  Long-established Board precedent recognizes that Section 7 protects employee communications to the public that are part of and related to an ongoing labor dispute.  Moreover, employees also have a protected right to seek help from third parties regarding their working conditions, including the right to go to the press, blog, or speak at a union rally.

Finally, the report makes it clear that, at least from the General Counsel’s perspective, a “savings clause” inserted at the end of an otherwise unlawful set of employee policies does not cure the unlawful portions of the policy.  Thus, a phrase like, “This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations … or to engage in other concerted activities …” did not fix the other parts of the policy that unlawfully appeared to limit employees from discussing wages and working conditions through social media—the whole policy was still unlawful.

A word of caution: the report finds employer policies urging employees to use discretion, good-judgment and respect in posting or sharing information on the internet to be lawful.

To see the full report go to: https://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies

By Lisl Duncan

Legal Developments