The National Labor Relations Board on May 30 issued a new report on social media policies for employees, giving real-world examples of company restrictions that cross the line, as well as highlighting instances where rules are valid.
"I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area," said NLRB acting general counsel Lafe Solomon in a news release.
The key question in evaluating social media policies, according to the report, is whether restrictions “would reasonably be construed to chill the exercise of Section 7 rights” by employees under the National Labor Relations Act.
For example, the NLRB found that one policy barring workers from disclosing “confidential guest, team member or company information” on social networking sites like Facebook or You Tube was unlawful. The reason: It could “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7.”
Another no-no: instructing employees to be sure that their posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site.” According to the NLRB, “the term ‘completely accurate and not misleading’ is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”
The NLRB also said it was unlawful to tell employees not to post “offensive, demeaning, abusive or inappropriate remarks” because that covers “a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”
As for cautioning employees to “think carefully” about friending colleagues, that too was unlawfully overbroad, according to the NLRB, because it would discourage communication among co-workers.
Not even an admonishment against commenting on legal matters passed NLRB muster. “We found that the prohibition on employees’ commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the Employer,” according to the NLRB.
So what are employers allowed to do? The report included an example of an acceptable policy, which included warnings such as “you are solely responsible for what you post online,” and “Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance,…may result in disciplinary action up to and including termination.”
Former NLRB general counsel Ronald Meisburg, now a partner at Proskauer Rose, found this section to be “of greatest interest,” he said via e-mail. “This goes beyond the usual guidance given by the General Counsel and should be of special interest to employers.”