NLRB memo sheds useful – and, in some cases, surprising – light on employers’ social media policies.

A couple of years ago I urged readers to consider developing, sooner rather than later, policies relating to their employees’ use of social media. That’s because, whether employers like it or not, their employees are using social media, and that use can put the employer’s business at risk. Better to get ahead of the problem than have to play catch-up ball when an employee’s careless or calculated online behavior causes problems.

Then last summer the Acting General Counsel of the National Labor Relations Board (NLRB) issued a report that shed considerable light on the types of social media activities that are protected from sanction by employers. In an October, 2011 post I observed that this dovetailed nicely with my earlier post, as it provided multiple illustrations of the limits on an employer’s after-the-fact ability to sanction an employee’s online activities

And now the NLRB’s Acting GC has issued yet another report. (And, by the way, just how many helpful memos does Lafe Solomon have to produce before he can get “acting” removed from his title?) This one focuses on social network policies adopted by employers, identifying various limits to which such policies are subject. It provides useful guidance to all employers – those who have already formulated a social media policy and those who haven’t but expect to be doing so soon.

The most important take-home message from the NLRB: even the most seemingly benign policies can run afoul of employees’ rights.  That’s the lesson that some Very Familiar Corporations – companies like Target, General Motors, DISH Network, among others – learned the hard way. In fact, of the seven companies whose social media policies the NLRB reviewed, only Wal-Mart passed with flying colors.

As far as the NLRB is concerned, an employer’s social media policies must be consistent with Section 8 of the National Labor Relations Act (the Act). Section 8 prohibits imposition of a rule or policy on employees if that rule/policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.” In this context, the term “Section 7 rights” refers to the types of “protected activities” or “concerted activities” I described in my post last October. (Feel free to check back there now to refresh your recollection. Don’t worry, we’ll wait for you.) 

The NLRB uses a two-step inquiry to determine whether Section 8 is violated. Most obviously, a social media policy that clearly restricts Section 7 rights is impermissible. But a policy may also be unlawful if: (1) employees would reasonably construe the policy’s language to prohibit Section 7 activity; or (2) the policy was promulgated in response to union activity; or (3) the policy has been applied to restrict the exercise of Section 7 rights. 

Consistent with the way we treat the right to free speech in this country, the NLRB looks to encourage speech and frowns on corporate policies that punish or discourage speech. So if a company’s social media policy is so broad and/or ambiguous that it could be read possibly to penalize lawful speech, the rule violates the National Labor Relations Act.

Here are some examples:

Target’s social media policy required employees not to “release confidential guest, team member or company information”. It also cautioned employees not to: share confidential information with other employees unless they “need the information to do their job”; or “have discussions regarding confidential information in the breakroom, at home, or in open areas and public places”. 

All that may sound reasonable – after all, isn’t it OK to try to keep “confidential” information “confidential”? – but the NLRB thought otherwise:  “Employees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment.” Indeed, such discussions would most likely occur in precisely the places (breakroom, home, open areas, public places) specifically singled out in the policy. So the Target policy violated Section 8.

Target’s policy also advised employees that it was their “responsibility” to report “unauthorized access” to, or “misuse” of, confidential information. Again, what’s not to like about that? But the NLRB decided that that provision seemed to threaten employees for not bringing to the employer’s attention violations of the prohibitions discussed above. Since the NLRB had found those prohibitions to be invalid, the NLRB figured that Target’s reporting requirement was equally invalid.

GM’s policy discouraged “[o]ffensive, demeaning, abusive or inappropriate remarks”, and  cautioned GM employees that Internet posts about GM must be “completely accurate and not misleading” and must not “not reveal non-public company information on any public site”.  The term “non-public company information” was defined to include such matters as GM’s financial performance and personal information about other employees, such as “medical condition[s], performance, compensation or status in the company”.

Again, these might look like reasonable limitations intended to protect GM and its employees. Not so, said the NLRB. The Act allows employees to say things that are not entirely accurate (not to mention “offensive, demeaning, abusive or inappropriate”), as long as they are not “maliciously false”. Thus, GM’s insistence on “complete accuracy” was not permitted. Similarly, broad categories like employee performance, compensation and corporate status encompass topics related to Section 7 activities, so GM couldn’t properly prohibit online discussions of such matters. Nor could it generally bar the posting of photos, music, videos, and the quotes and personal information of others, or use of GM logos or trademarks – since all such postings could reasonably include Section 7 activities.

The NLRB also didn’t like GM’s admonition that its employees should “[t]hink carefully about ‘friending’ co-workers”, since that could discourage communications among co-workers. Ditto for a provision that urged employees to check with company officials if the employees had any doubt about whether particular information should be posted. It’s long been an NLRB no-no to require employees to get company permission before they can engage in Section 7 activities.

The McKesson Corporation’s social media policies instructed employees to adopt a “warm”, “friendly” and “professional” tone, and not to “pick fights”. All nice thoughts, maybe, but all illegal, according to the NLRB. McKesson was concerned that, absent a warm, friendly, professional toe, online discussions “could become heated or controversial”. Since discussions of working conditions, unionism and similar matters – all obviously Section 7 activities – could easily become “heated or controversial”, the NLRB figured that employees could “reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.” 

The policies adopted by Clearwater Paper Company suffered several of the problems described above. Employees were told not to reveal “confidential”, “proprietary” or “material non-public information”, terms which the NLRB concluded could include communications permitted by Section 7. The NLRB gave similarly short shrift to a provision forbidding employees from opining about “the workplace, work satisfaction or dissatisfaction, wages hours or work conditions”. No surprise there. Likewise to a provision warning employees to “avoid harming the image and integrity of the company” – overbroad, said the NLRB.

The NLRB reviewed social media policies from several more companies – you can review the NLRB’s complete memo here – but you should get the point by now: drafting a legal (and enforceable) policy governing your employees’ use of social media is a complicated process requiring awareness or and sensitivity to a wide range of factors. Even seemingly innocuous and unobjectionable provisions can turn out to be quite the opposite.

The NLRB was not totally dismissive of all the various policies. Clearwater, for example, prohibited online “harassment, bullying, discrimination, or retaliation” between co-workers online if such conduct would not be permissible in the workplace, even if the online conduct were done “after hours, from home and on home computers”.  According to the NLRB, this prohibition is OK because it applies only to plainly egregious content.

The NLRB also gave the thumbs up to Target’s admonition that employees should “[b]e suspicious if asked to ignore identification procedures”.  That simply encouraged vigilance without threatening disciplinary action for engaging in Section 7 activities. Similarly, the NLRB approved a provision in McKesson’s policy reminding employees that statements made in the online world have consequences and that employees should exercise personal responsibility on social media. The NLRB didn’t see such reminders as restricting speech in the least.

And the NLRB seemed OK with policies that are narrowly tailored to protect the company’s right to speak for itself. So, for example, an employer can require employees to get prior authorization before posting a message in the employer’s name or if the message can be reasonably attributed to the employer.   And an employer can require an employee to expressly state that the employee’s messages are the employee’s own and do not represent the employer’s positions, strategies or opinions.

Still, the NLRB’s overall approach is clearly slanted toward protecting the rights of employees. Indeed, in several of the cases described in the NLRB’s most recent memo, the agency disapproved of seemingly routine, boilerplate “savings clauses” that simply said the social media policy would be administered in compliance with all laws and regulations. The purpose of such clauses is normally to underscore the company’s good faith intent to abide by the law. The idea is that, if any other provision of the policy might be thought improperly ambiguous or overbroad, the “savings clause” will establish conclusively that the policy is to be interpreted as necessary to make it legal. 

According to the NLRB, though, such boilerplate provisions will not ordinarily save a company’s social media policy where that policy contains the types of overbroad provisions described above, i.e., provisions that might reasonably be seen as chilling employees’ exercise of the Section 7 rights.

So here are just a few takeaways drawn from the recurring themes we saw through these cases:

  • Content-based restrictions on employee speech, no matter how well-intentioned, can – and often will – step on protected speech.  Such policies need to be crafted with imagination and a clear eye to the unintended consequences of those restrictions. When you think you’ve crafted the restriction narrowly enough, think again – and then add limiting language and clarifying examples.
  • If a restriction on employee speech fails, a requirement that employees report when others violate that restriction will fail as well.
  • Suggesting that employees aspire to beneficial use of social media may be OK, particularly if that aspiration includes no threat of punishment. 
  • You cannot require employees to get pre-approval for social media messages posted in the employee’s own name, but you can require them to get such pre-approval for – or refrain entirely from engaging in – speech that purports to be on behalf of the company.
  • A generalized savings clause is nothing more than a lazy shortcut that won’t actually help you.  

But the main takeaway is: Drafting a company’s social media policy is a surprisingly difficult task, but a necessary one nonetheless. There are pitfalls galore, even for those with the best of intentions. Before wading into the deep weeds of the drafting process, a company wishing to adopt a social media policy – or revise an existing policy – should seriously consider seeking expert assistance. There are myriad subtleties and conflicting considerations that must be weighed and balanced and, as we have seen in the NLRB memo, even the biggest corporations came up short.