Social media in the workplace: Three NLRB guidance documents

The National Labor Relations Board Acting General Counsel has issued the third guidance document in the last ten months addressing social media activity by employees – one of the fastest developing areas of employment law. Three Guidance Documents Issued by NLRB General Counsel In August of last year, the Office of General Counsel ('OGC') issued a report summarizing investigations and outcomes in 14 different cases involving social media, and issued an updated report in early 2012. The first two reports focused largely on policies or provisions the OGC considered illegal. On May 30, 2012, the OGC issued a third guidance document, this time published as an Operations Management Memorandum. The most recent document discusses seven recent cases. According to the OGC, at least some of the policy language in six of those cases were overbroad and unlawful under the National Labor Relations Act ('NLRA'). However, he approved an entire social media policy in the last case this time, finally giving employers a more meaningful starting place for drafting or updating social media policies of their own. Summary of NLRB Guidance Documents The reports issued by the OGC can be boiled down into essentially two categories of issues:  First, was an employee unlawfully disciplined or fired for engaging in activity protected under the NLRA?  Second, did the employer violate the NLRA by maintaining a work rule that would chill employees in the exercise of their Section 7 rights?  Taken together, we can glean some insight into apparent expectations of the OGC for workplace rules and policies regulating social media activity by employees. Non-Disparagement Provisions. Non-disparagement or similar clauses appear in most social media (or even more general) workplace policies. For example, policies often prohibit employees from 'making disparaging comments about the company, co-workers, or vendors' or 'discriminatory, defamatory, or harassing comments about specific employees, work environment, or work-related issues.' According to the OGC, these broad rules are unlawful.  Prohibiting 'disparaging comments about the company,' for example, might include remarks that an employer isn't treating employees fairly or paying them enough -- and those kinds of remarks would be protected under the NLRA. Defamation. Even a policy prohibiting defamatory comments is overbroad. This seems counterintuitive, because defamation is itself illegal . . . so how can it be protected? For purposes of the NLRA, the NLRB says defamatory statements do not lose protection unless the comments are not only false, but maliciously false.  The OGC says this principle applies the same in the context of social media. Unprofessional, Inappropriate, or Disrespectful Communications. On a related note, policies often prohibit conduct or communications that are inappropriate, disrespectful, rude, offensive, or statements an employee wouldn't want her boss to see, and so on. The OGC explained that forbidding things like 'offensive or disrespectful conduct' would prohibit such a broad spectrum of conduct, a reasonable employee could interpret such a policy as intending to limit Section 7 activity. Prohibiting Work-Related Communications. Employers often try to prohibit communications among employees about any work-related concerns. For example, the OGC has looked at a policy saying employees would face discipline if they failed to take workplace concerns first to immediate supervisor. The General Counsel said that policy violated the Act, particularly because of the threat of discipline, as it would tend to chill protected employee complaints. In fact, the OGC indicated it's even unlawful for a social media policy to encourage employees to vent concerns through internal mechanisms rather than social media. The OGC said it would violated the NLRA to tell employees, 'You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers' and 'to consider using available internal resources, rather than social media or other online forums,' to resolve concerns. According to the Memo, telling employees they 'should use internal resources rather than airing their grievances online' would likely chill or inhibit employees from seeking redress through alternative forums, which is protected activity. Prohibiting Friending of Co-Workers. Similarly, the OGC said telling employees to '[t]hink carefully about ‘friending' co-workers . . . on external social media sites' was unlawfully overbroad because it would discourage communications among co-workers, and therefore interferes with protected Section 7 activity. However, earlier guidance approved of an employer policy stating that no employee should ever be pressured to 'friend' or otherwise connect with a co-worker via social media. This kind of rule is specific enough, and clearly applies only to harassing conduct, so a reasonable employee would not understand it to restrict Section 7 activity. (In a similar vein, a company may be able to limit a manager from sending a friend request to an insubordinate without running afoul of the NLRA.) Confidential Information. Employers often wish to limit online employee communication by prohibiting employees from 'disclosing or communicating . . . confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.'  The OGC has rejected that very policy language and similar policies. Obviously, employers must be able to protect trade secrets and confidential information, but need to ensure they do not hinder employees' ability to discuss things like wages and working conditions. The OGC takes issue with confidentiality provisions if the employer offers no definition or guidance as to what it considers to be confidential. Prohibiting Use of Company Name, Logo, or Intellectual Property. In earlier guidance, the OGC concluded that a policy prohibiting 'use of the company's name or service marks outside the course of business without prior approval of the law department' to be overbroad. The OGC reasoned that employees have a right under the NLRA to use an employer's name or logo when engaged in concerted activity – akin to electronic leaflets, picket signs, or protesting employment conditions. However, the May 2012 Memo approved of a policy instructing employees to 'Respect all copyright and other intellectual property laws. For [Employer's] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer's] own copyrights, trademarks and brands.'  According to the General Counsel, this rule passed muster because it did not prohibit employees from using copyrighted material in their online communications, but simply urged employees to respect copyright and other intellectual property laws. (He went on to say the next sentence requiring employees to '[g]et permission before reusing others' content or images' was unlawful.) Identifying Employer or Other Employment Information. Many employers instruct employees not to identify their employer on personal profiles, not to mention their company affiliation, not to use company email addresses, and so on. These restrictions also violate the NLRA according to the General Counsel. As he pointed out, an important function of 'personal profile pages' (listing employer information, etc.) is to allow employees to use social networks to find and communicate with their co-workers at their own or other locations. Banning employees from identifying their employers would be especially harmful to employees' Section 7 rights for that reason, he said. Generally, an employer implements this kind of policy to prevent disclosure of a certain piece or category of company information. Instead of broadly prohibiting disclosure of identifying information, employers can accomplish their goal by narrowly drafting the policy to address the specific concerns. Additionally, pursuant to Federal Trade Commission guidance, if an employee endorses an employer's product or service online, the employee is required to disclose the employment relationship – and the employer can be liable if the employee does not do so. Employee Disclaimers. Employers frequently instruct employees to include a disclaimer with their social media activities. For example, in one NLRB case, a policy required employees 'expressly state that their comments are their personal opinions and do not necessarily reflect the Employer's opinions.' According to the OGC, requiring employees to make this kind of disclaimer every time they communicate online would unduly burden the exercise of Section 7 rights to discuss working conditions or criticize the employer's labor policies. Want to protect essentially the same business interest? Employers should still be able to prohibit employees from speaking on behalf of the company without prior authorization to do so. Employer Disclaimers. Following the first bits of unexpected feedback out of the NLRB's OGC about social media policies, many employers began inserting disclaimers into handbooks or policies saying something like, 'nothing in this policy is intended to interfere with your rights under the NLRA.'  But the OGC says this kind of disclaimer won't save an overbroad policy.  For example, it wouldn't save a policy broadly prohibiting 'inappropriate content' because the employee still couldn't be expected to know what the employer deemed 'inappropriate.' Bottom Line The key take-home (or, rather, 'take-to-the-office') messages for employers looking for meaningful guidance on social media policies include the following:

• Ultimately, make it clear to employees that your policy is not intended to reach protected communications about working conditions.  Mere disclaimer language is insufficient, so this requires careful revision of various policies.

• Use limiting language and specific examples to illustrate the intended scope of the limitations.

• Try looking at the language approved in various cases before the OGC.  The most recent guidance includes a copy of the policy approved by the General Counsel.  Although the Memo didn't discuss every component of that policy, it offers a good starting point.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.