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National Labor Relations Board General Counsel Memo Offers Guidance on Employer Social Media Policies

June 8, 2012

By Amy Rosenberger

As employee use of social media has exploded, more employers are developing policies to rein in posts and tweets about the workplace. Some social media policies read a lot like a general civility code, regulating conduct both inside and outside the workplace. A May 30, 2012, memo from the General Counsel of the National Labor Relations Board (NLRB) provides much needed guidance about the extent to which an employer may lawfully regulate social media activity by its workforce. The memo summarizes the analysis of the General Counsel’s Division of Advice, in deciding whether to pursue charges against employers contesting their social media policies under the National Labor Relations Act (NLRA). Importantly, the principles outlined in the memo apply to both union and non-union workplaces.

Generally, any work rule will be found unlawful if it explicitly prohibits conduct protected by the NLRA, or if it could be reasonably construed by a worker to prohibit such conduct, was issued in response to union activity, or is applied to prohibit NLRA-protected activity. Conduct protected under the NLRA is concerted activity among employees for their mutual aid and protection – including not only seeking union representation, but less formal group activity like employees banding together to approach the employer about their wages, hours or working conditions. It also includes contacting the NLRB to contest alleged violations of the NLRA by the employer, and publicizing an ongoing labor dispute outside the workplace. Social media policies that prohibit – or could reasonably be construed to prohibit – such activity violate the NLRA.

Applying these principles, the Division of Advice has concluded in numerous cases that social media policies violate the NLRA when they broadly prohibit postings that are disrespectful, offensive, rude, inappropriate, controversial, sensitive and the like. If there is no context or limitation for these terms, workers could reasonably construe the policy to prohibit posts among coworkers complaining about their wages, hours or working conditions, and seeking to improve them. Similarly, broad policies prohibiting employees from contacting government or other outside agencies without employer permission, or from responding to inquiries from third parties about the workplace have been deemed unlawful because they could reasonably be interpreted to prohibit employee contact with the NLRB or a union. Importantly, simply tacking on a disclaimer stating that these rules are not intended to prohibit NLRA-protected conduct will not render the policy lawful.

On the other hand, social media policies that specifically prohibit conduct that is clearly not protected, such as discriminatory harassment, disclosure of employer trade secrets, or insider trading, have been upheld. A helpful example of a social media policy that the Division of Advice found to be lawful is attached to the General Counsel’s May 30 memo.

If you have questions about a specific employer’s social media policy, please contact one of the Labor Department attorneys at Willig, Williams & Davidson.

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