If First You Don’t Succeed: NLRB’s Third Guidance Document Finally Provides Useful Direction for Employer’s Social Media Policies

It seems that the law is always two steps behind technology. The NLRB has issued two previous guidance documents covering social media policies. Those statements focused primarily on policy provisions that were likely to violate the NLRA, and offered minimal guidance on what lawful policies may look like.  This lack of positive guidance often left employers wondering whether their social media polices would pass NLRB muster. However, on May 30, 2012 the NLRB’s Acting General Counsel issued his third guidance memo on social media, and in it provided, for the first time, an example of a social media policy that was acceptable in its entirety (the second memo identified lawful polices but none of those polices were social media policies).

So what can employers learn from this approved policy?  The previous guidance had rejected policies that could be reasonably construed to violate Section 7 activity (i.e., communications among co-workers concerning wages, hours and other conditions of employment). According to the Acting GC, the approved policy avoided this pitfall by containing examples of clearly illegal or unprotected conduct, and distinguished such conduct from lawful Section 7 activity. The bottom-line of this guidance statement seems to be “narrow the scope and provide examples.”

Here are a few of the highlights from the approved social media policy:

• Protecting Confidentiality: In previous guidance, the Acting GC cautioned that policies requiring employees “to maintain confidentiality” were overbroad because they might be construed to prohibit employees from discussing compensation or unsafe working conditions.  The approved policy, however, limited the scope of the confidentiality provision to “Employer’s trade secrets and private and confidential information” and provided examples: “Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”
• Inappropriate Postings: In previous guidance, the Acting GC indicated flat ban on “inappropriate postings” was too vague to pass muster. However, the approved policy included language that defined “inappropriate postings” as those “that may include discriminatory remarks, harassment and threats of violence or other similar inappropriate or unlawful conduct.” The Acting GC stated that this limitation gave sufficient clarity to employees so as to not run afoul of Section 7.
• “Be Respectful, Fair, and Courteous:” The Acting GC stated that such “politeness” requirements could serve to chill Section 7 activity, which is often impolite. However, the approved policy again added clarity and direction by explaining that being “respectful, fair, and courteous” means not posting social media content that is “malicious, obscene, threatening, or intimidating;” “harassing or bullying;” “meant to intentionally harm someone’s reputation;” or “could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”  Such definitional language was found to give sufficient clarity to employees and so avoided any potential conflict with Section 7.

The Acting GC did not comment on any other provision in the approved policy, which suggests that the remaining policy language raises no issues under the NLRA. The full policy can be found in the Advice Memorandum in Walmart, Case No. 11-CA-067171.

Here are some of the other policy provisions discussed in the guidance opinion, broken down into those that were found to be unlawful and those that were lawful.

Policy Provisions Found to be Unlawful:

• Friending Co-Workers:  A policy stating that employees should “think carefully about ‘friending’ co-workers . . . on external social media sites” was unlawful because it would likely discourage communications among co-workers.
• Employer Disclaimers: Employers commonly seek to escape overbreadth claims in social media policies by including a provision that disclaims any intent to restrict Section 7 activities. However the Acting GC rejected one such provision, stating that it could not overcome the deficiencies in the rest of the social media policy.

 Provisions Found to be Lawful:

• Safety Information: Prohibiting employees from posting “information directly or indirectly related to the safety performance of systems or components for vehicles” was laful because it applied to the safety of the employer’s own products and did not apply to workplace safety.
• Copyrighted Information: Instructing employees to “show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer’s] own copyrights, trademarks and brands” was lawful because it did not prohibit employees from using copyrighted material, but merely urged them to respect existing law.

While the most recent guidance statement from the NLRB provides employers with valuable information of the scope and validity of potential social media policies, it is important to note that the guidance is not binding on the NLRB or any court. However, by following a policy similar to the approved policy a employer can significantly reduce the risk of being on the wrong end of an unfair labor practice charge.  Thus, while the most recent guidance provides employers with a roadmap for an approved social media policy, it is important to remember that one size does not fit all, and employers should work to find a policy that fits their own needs, and comports with its various legal obligations.