The National Labor Relations Board’s Acting General Counsel, Lafe Solomon, has issued a third report regarding the legality of language contained in employers’ social media policies. (For more information on the previous reports, see our article, Labor Board Prosecutor’s Social Media Report Concludes Common Policy Provisions May Be Unlawful.) The cases discussed in the latest report provide further guidance to employers struggling with developing and enforcing policies regulating employee social media activity.
In six of the seven cases discussed, the Acting General Counsel’s office found certain provisions of the employer’s social media policy to be unlawful. In the seventh case, the entire policy was found to be lawful. The highlights of the report are summarized below. In addition, for the first time, the report includes a separate, sample policy the NLRB’s prosecutor deems lawful.
The stated focus of the trilogy of reports is whether policy language, on its face, could “reasonably” be read as restricting an employee’s right under the National Labor Relations Act to engage in protected concerted activity. Since many social media policies incorporate a host of other employer policies, ranging from respect in the workplace to confidentiality and media contact, the Acting General Counsel’s reports provide guidance for almost the entire spectrum of employer policies.
What is Concerted Activity?
In general, concerted activity is activity “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action” and where individual employees bring “truly group complaints” to management’s attention. However, the Labor Board has held that individual employee gripes are not concerted activity.
When is Concerted Activity Protected?
An employee’s concerted activity will be protected under Section 7 of the Act where, for example, the employee’s statements implicate the employee’s working conditions, regardless of how those statements are communicated. Another example of protected activity under Section 7 occurs when the employee protests supervisory actions. However, these protections can be lost where the employee’s outbursts about a supervisor are too “opprobrious” to maintain protection under Section 7. The use of curse words or expletives alone is unlikely to reach this level. Protection also could be lost where the communication is disloyal or has the tendency to damage an employer’s business and are made with reckless disregard of the truth or are maliciously untrue. What exactly constitutes protected concerted activity requires further examination and analysis of the facts at issue on a case-by-case basis.
Policy Language to Avoid
In the latest report, the Acting General Counsel found certain policy language regarding employee social media use to be problematic and would warrant issuance of a complaint because of unlawful restrictions on the exercise of protected concerted activity. These include:
- Prohibiting posts discussing the employer’s non-public information, confidential information, and legal matters (without further clarification of the meaning of these terms);
- Prohibiting employees from harming the image and integrity of the company, making statements that are detrimental, disparaging or defamatory to the employer, and prohibiting employees from discussing workplace dissatisfaction;
- Prohibiting posts that are inaccurate or misleading or that contain offensive, demeaning or inappropriate remarks; and instructing employees to use a friendly tone and not engage in inflammatory discussions;
- Requiring employees to secure permission prior to posting photos, music, videos, quotes and personal information of others;
- Prohibiting the non-commercial use of the employer’s logos or trademarks;
- Discouraging employees from “friending” co-workers;
- Prohibiting online discussion with government agencies concerning the company;
- Encouraging employees to solve work problems in the workplace rather than posting about such problems online; and
- Threatening employees with discipline or criminal prosecution for failing to report violations of an unlawful social media policy.
Guidance on Lawful Policies
For the first time, the Acting General Counsel’s report includes a complete sample of a policy deemed to be lawful. The Acting General Counsel explained that a policy is more likely to avoid infringing upon an employee’s right to engage in protected concerted activity if it “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.” As an example, the Acting General Counsel found a social media policy that prevented “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct” to be lawful “since it prohibit[ed] plainly egregious conduct, such as discrimination and threats of violence.”
Additionally, the Acting General Counsel noted that this same policy, which commanded that employees be respectful and “fair and courteous” in connection with “posting of comments, complaints, photographs, or videos,” could be construed as overly broad. However, where the policy contained additional guidance that individuals should not post items that “could be viewed as malicious, obscene, threatening or intimidating” or “contribute to a hostile work environment on the basis of…any…status protected by law or company policy,” the report said the employer, in fact, was advancing legitimate interests without infringing upon an employee’s right to engage in protected concerted activity.
In keeping with our preventive labor relations practice, Jackson Lewis has always advised employers that, where possible, it is better to uncover and resolve matters internally. As noted above, the Acting General Counsel takes issue with a policy encouraging employees to solve work problems in the workplace rather than posting about such problems online. However, Mr. Solomon notes a difference between encouraging and suggesting by saying, “An employer may reasonably suggest that employees try to work out concerns over working conditions through internal procedures.” In the sample policy bearing Mr. Solomon’s imprimatur, he accepts yet another variation: “Also, keep in mind that you are more likely to resolved [sic] work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet.” While the report is an excellent tool for employers and their counsel, it still will require an employer to determine which words, on their face, may “reasonably” be read as restricting an employee’s right to engage in protected concerted activity.
Finally, the Acting General Counsel determined that an employer’s social media policy preventing the dissemination of trade secrets and confidential information was lawful. First, the Acting General Counsel explained that “[e]mployees have no protected right to disclose trade secrets.” Second, with respect to confidential information, again, the Acting General Counsel noted that the policy provided numerous examples of what specifically should not be disseminated, such as system development information, processes, and internal reports. By providing these examples, the Acting General Counsel found that employees would “understand that it does not reach protected communications about working conditions.”
Advice on Handbook Disclaimers
The Acting General Counsel’s report noted that a social media policy’s “savings clause,” stating the policy would “be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act),” was insufficient to cure ambiguities in the policy’s overbroad rules.
The Acting General Counsel’s latest report provides further insight into some of the complexities of drafting social media policies. The key takeaways are to explain the basis of the restrictions and avoid undefined terms to ensure they cannot be read in an overbroad manner. In addition, employers should be aware that disclaimers will not cure overbroad policies. Should you have any questions about whether your organization’s social media or other workplace policy comports with the NLRB’s current views, please speak with the Jackson Lewis attorney with whom you normally work.