The NLRB’s Social Media Policy Memorandum

On May 30, 2012, the National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon issued a memorandum regarding social media policies in the workplace. The General Counsel’s memorandum is applicable to both unionized and non-unionized work environments.

Section 7 of the National Labor Relations Act (NLRA) allows employees the right to form, join, or assist labor organizations and the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In addition, even in union-free businesses, employee complaints about hours, pay, treatment, working conditions, etc. may not result in disciplinary action or termination under the NLRA. This section of the Act has important implications for employer social media policies, as delineated in the NLRB’s recent memo.

The NLRB’s memo covered seven social media policies published by various employers to demonstrate specific provisions that may be unlawful. Some of those social media policies are discussed here.

Policies concerning an employer’s attempt to protect confidential information may be unlawful.

For example, a policy prohibiting employees from online discussions regarding “confidential guests, team members or company information” is unlawful because the policy could be shown as the employer prohibiting employees from disclosing information regarding their own terms and conditions of employment (which is a protected activity).

Policies that aim to show peaceful relations amongst staff may be unlawful.

For example, a policy intended to reduce conflicts amongst employees (that may include controversial issues) can be unlawful depending on the topic. If the topic is about working conditions, it can be interpreted as inhibiting Section 7 rights, if employees are prohibited from discussing such matters (either verbally or in an online format).

Policies about employer image protections may be unlawful.

For example, if the employer enforces a policy suggesting that employees are prohibited from commenting on legal matters, including pending litigation or disputes, the company may be unlawfully restricting employee communications. In addition, if an employer restricts which employees are permitted to discuss company information with the media, it may be unlawful. The NLRB stated that: “[e]mployees have a protected right to seek help from third parties regarding their working conditions,” so employers may not restrict social media comments to non-public forums only.

The social media policy that was approved by the NLRB allows for employees to band together to discuss or improve working conditions. Businesses are encouraged to adopt and/or modify the NLRB’s social media guidelines. According to the NLRB, it is still lawful to have a policy that bans harassment, bullying, discrimination, and retaliation using social media platforms. Another lawful provision in the memo stated that “information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications” is permissible.

Although the NLRB’s new social media policy guidelines are somewhat restrictive, it is still important to publish a policy. It is critically important that businesses in certain regulated industries (medical, financial, etc.) adopt social media policies that comply with industry regulations, such as HIPAA. One final suggestion is to include a “saving clause” in the company’s social media policy. A “saving clause” is a statement such as, “nothing in this policy is intended to infringe upon Section 7 rights.” Such a clause may partially shield employers from liability.

Based on the number of violations outlined in the memorandum, many employers are not in compliance with the NLRB guidelines for social media policies. It is extremely important to comply in this area, as the NLRB’s interpretations seem to be supported by the US court system. It is important to have your social media policy reviewed by your HR Professional or your legal counsel to ensure it does not violate an employee’s Section 7 rights. It is also highly recommended for employers to contact an HR Professional or legal counsel before disciplining or terminating an employee due to his or her social media activities.