NLRB’S Acting General Counsel Issues Third Report on Social Media Cases

On May 30, 2012, the National Labor Relation Board's Acting General Counsel (“AGC") issued his third report (“Report") regarding his view of employees' rights, under Section 7 of the National Labor Relations Act ("NLRA") to utilize social media, such as Twitter and Facebook, to comment on their wages, hours and working conditions. The Report can be found at the National Labor Relations Board's website nlrb.gov. See also our prior advisory regarding the ACG's second report.

The Report focuses on employer policies addressing employees' use of social media. The Report discusses seven recent cases the ACG considered, six of involved employer policies that he found were overbroad and unlawful under the NLRA, at least in part, and one of which involved an employer's revised policy that the ACG found was lawful (a complete copy of this policy is attached to the Report).

The Report emphasizes the need for a social media policy to clearly define its terms and phrases or include examples to ensure that the policy cannot reasonably be construed as prohibiting employees from engaging in lawful activities under the NLRA.

The Report reflects the legal position the ACG may take in any unfair labor practice cases. Employers are vigorously contesting these cases and the validity of the ACG's position ultimately will be determined by the National Labor Relations Board and then the Federal Courts.

Nonetheless, the Report is significant because it illustrates how the AGC and his regional offices will process unfair labor practice charges involving employees' use of social media. In that regard, the Report offers the following key guidelines:

• "Savings clauses" to the effect that the policy is not intended to violate the employees' rights under the NLRA generally will not cure an overly broad policy, however, examples of permissible and impermissible conduct may clarify and thereby render an ambiguous policy statement lawful.

• Policies may not prohibit employees from mentioning their employer, using their employer's logo, or posting photos or videos that include the employer's name or logo; however, policies can prohibit employees from representing that they are speaking on behalf of the employer.

• Policies may not restrict employees from disclosing or posting non-public information about the employer or other employees; however, policies may prohibit the disclosure of trade secrets or financial information that is restricted by financial disclosure laws.

• Policies may not prohibit employees from making disparaging, offensive, demeaning or untrue comments regarding their employer or other employees; however, policies can prohibit conduct that constitutes sexual or racial harassment, discrimination, bullying, or maliciously false statements.

The policy the ACG found to be lawful included several examples of prohibited conduct. For example, the ACG found that the policy lawfully directed employees to post only “appropriate and respectful content" because it included, by way of illustration, directives to maintain the confidentiality of trade secrets and to respect financial disclosure laws. This combination was crucial to the ACG's finding that the policy was lawful. The Report noted that, while the general policy statement may be ambiguous or could be read to restrict protected rights, because the policy set forth examples of plainly egregious conduct, employees would not reasonably construe the policy to prohibit lawful conduct.

Employees' use of social media is an evolving are of the law. Employers should carefully review their policies and practices given these developments and, where practical, draft such policies so as to narrowly restrict employees' rights or include examples to help illustrate their intent.