Understanding The NLRB’s Latest Guidance On Social Media Policies
In May 2012, the National Labor Relations Board (“NLRB” or “the Board”) issued a third round of guidance concerning 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.
Section 7 protects the right of employees to engage in “concerted activity” for the purpose of collective bargaining or “other mutual aid or protection.” Recently, courts and NLRB decisions have ruled that Section 7 also protects employees who complain to each other or otherwise discuss the terms and conditions of their employment – even while using social media. This can become a major problem for employers when they discipline or terminate an employee for posting negative things about their company on social media websites. Employers will often point to their social media policies (which sometimes prohibit employees from disparaging the company on public websites), claiming that discipline was warranted because employees should not be allowed to violate company policy. However, according to the NLRB, an overbroad social medial policy may violate employees’ rights under Section 7.
If all of this seems a little confusing, you are not alone. In fact, this most recent guidance from the NLRB is the third attempt by the Board since August 2011 to clarify and explain its position regarding social media policies. So, how can employers implement a social media policy that protects the company’s interests and rights, but also withstands the scrutiny of the NLRB? Here are a few suggestions:
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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 websites like Facebook. It may be unprofessional, but employees can engage in this sort of behavior on their own time. Don’t draft social medial policies that prohibit public criticism.
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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. Accordingly, employers cannot prohibit employees from discussing their salary, even on social media.
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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.
The Board’s position on these issues is complicated in many respects. Consequently, the best advice is to have legal counsel review any social medial policy to ensure that it is narrowly-tailored to avoid potential violations of Section 7. You can view the Board’s press release regarding the third round of guidance here, which contains links to all three memoranda.
This article was adapted from a post on the HRLawMatters.com Blog provided by Troutman Sanders LLP.
Originally published in Employment & The Law – 09/05/2012
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