On May 30, 2012, the National Labor Relations Board's Acting General Counsel issued a third report on social media cases. This report follows the Board’s August 2011 and January 2012 reports on the subject, which we previously discussed. The guidance contained in the three social media reports is applicable to most private sector employers, unionized or not.
The third report discusses seven social media cases handled by the Board’s General Counsel in recent months, all of them focused on employer policies that restrict employee social media postings or communications. In six of the seven cases, the General Counsel’s office found that some provisions of the employers’ social media policies were unlawfully broad, interfering with the rights of employees under Section 7 of the National Labor Relations Act (NLRA) to engage in “protected concerted activities.”
Significantly, the General Counsel’s office concluded that the entire social media policy in the seventh case was lawful under the NLRA. The third report includes the full text of the lawful policy, providing the most helpful guidance for employers to date regarding what social media policy provisions will pass muster with the Board. In its discussion of the lawful policy, the report stressed that the policy avoided ambiguity regarding its coverage by providing sufficient examples of “plainly egregious conduct” so that employees would not reasonably construe the policy to bar Section 7 activities, such as discussion of wages and working conditions with co-workers.
In light of the NLRB’s most recent social media report and the continuous evolution of social media technology, employers should review their social media policies with employment counsel to ensure that their policy language complies with current law. In particular, employer social media policies should incorporate examples of prohibited conduct to avoid possible confusion about the policy’s coverage and emphasize the legitimate reasons for the policy (for example, preventing the improper disclosure of proprietary information via social media or the use of social media to engage in conduct that violates anti-discrimination and harassment policies).
To discuss your company’s social media policy or other policy needs, please contact any attorney in the Gibbons Employment & Labor Law Department.
Kristin D. Sostowski is a Director in the Gibbons Employment & Labor Law Department.