The National Labor Relations Board’s General Counsel issued a new memorandum regarding employee’s social media usage — the third memorandum within a year’s time. In doing so, the General Counsel noted that he was pleased at the amount of public interest on the topic as it has provided him the opportunity to educate those impacted by social media policies. And educate he did, ranging topics from confidentiality rules to overall tone and content of the guidelines. But the ultimate message to employers was short: be unambiguous and lawful.
Employers, be unambiguous with your confidentiality rules. In other words, a social media policy requiring that employee’s only disclose confidential information that “others need to know” is in violation of the NLRA because it is ambiguous and overbroad. In this sense, employees could feasibly construe the provisions as a prohibition from discussing information regarding the terms and conditions of their employment.
Be unambiguous with your rules regarding public statements and press contacts. The NLRB previously found that an employer policy requiring employees to report to management any “unsolicited or inappropriate electronic communications” received to be in violation of the NLRA. This is, similarly, because employees could reasonably understand the rule to restrain their exercise of a right to communicate with their fellow employees regarding their terms and conditions of employment.
Do not adopt rules that are facially unlawful. While this point seems clear, the NLRB has knocked down provisions on these grounds. For instance, General Motors’ former policy prohibited employees from posting non-public company information on any public site. Non-public information, as defined in the company’s social media policy, included information “related to” the company’s financial performance. The policy further clarified that if in doubt about such posting, employees should check with a company representative prior to the posting. The NLRB held such rule to be facially unlawful, as it plainly restricted an employee’s Section 7 rights under the NLRA.
Employers must not encourage a certain tone or type of content. The NLRB made clear that such policies may be interpreted as prohibiting robust discussions about working conditions, Section 7 protected activity.
The takeaway is fairly unambiguous. First, a rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that employees would reasonably construe the language to prohibit Section 7 activity or the rule has been applied to restrict the exercise of Section 7 rights. Therefore, employers must ensure that their social media policies do not restrict Section 7 on its face, via interpretation or application.
The latest from the General Counsel is Memorandum OM 12-59.