The General Counsel of the National Labor Relations Board ("NLRB") released a report on January 24, 2012 summarizing its decisions in recent unfair labor practice cases involving employer responses to employee use of social media. The report provides useful guidance on drafting social media policies and disciplining employees without violating the National Labor Relations Act ("NLRA").
The NLRB noted that the two main points of the report are (i) employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; and (ii) an employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
The NLRB determined that a number of companies had overbroad and/or unlawful social media policies. One unlawful policy prohibited employees from making "disparaging comments about the company through any media." The NLRB explained this policy was illegal because it restricted protected concerted activity that was authorized by the NLRA. In another case, the NLRB deemed a social media policy unlawful because it provided that "employees should generally avoid identifying themselves as the employer's employees unless discussing terms and conditions of employment in an appropriate manner." The NLRB determined that such a policy would infringe on employees' rights to discuss terms and conditions of employment.
The NLRB upheld a policy that prohibited the use of social media posts that were "vulgar, obscene, threatening, intimidating, harassing", or "a violation of the employer's workplace policies against discrimination and harassment." The NLRB also upheld a social media policy that requested employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws.
Take away: Employer social media policies can and should contain provisions that (i) prohibit employees from sharing confidential and proprietary information online; (ii) prohibit employees from using vulgar or obscene language online or posting intimidating or harassing material; and (iii) provide definitions, examples and other specific guidance so that any prohibited conduct is not overbroad or vague.
The NLRB is currently working on decisions in more social media cases and is attempting to create a cohesive body of law on this issue. Stay tuned for further updates on this quickly evolving area of the law.