On May 30, 2012, the National Labor Relations Board’s (“Board”) Acting General Counsel, Lafe Solomon, issued his Third Report on Social Media Cases. This Report describes the restrictions on employee use of social media that an employer may lawfully include in its policies.
Under the National Labor Relations Act (“Act”), an employer may not implement a policy that would reasonably tend to chill employees in the exercise of their rights. If the rule does not explicitly restrict protected conduct, then the Board considers the rule to violate the Act, if: (1) employees would reasonably construe the language to prohibit protected activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict protected rights. Ambiguous rules must contain both limiting language and examples of clearly illegal or unprotected conduct to clarify that the rule does not restrict protected rights and may not be reasonably construed to do so.
The Report identifies, in great detail, the application of the foregoing standards to seven social media policies. In six of the cases, the General Counsel found certain aspects of the policy to be lawful, although certain parts were unlawful. In the last case, the General Counsel held that the entire policy was lawful. Of particular interest, the Report explains that the following clauses were not overbroad: (1) a prohibition on “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct,” because it could not be reasonably construed to reach, and there was no evidence that the rule was used to discipline, protected activity; (2) a requirement that employees be “fair and courteous” and “respectful,” because examples made it clear that the policy did not reach protected activity; and (3) a restriction on divulging trade secrets or private or confidential information, because employees have no right to divulge trade secrets and, again, the rule contained sufficient examples of prohibited disclosures so that employees could not reasonably conclude that protected communications were prohibited. The Report reprints the entire policy.
Employers are encouraged to review the Report and discuss with counsel the need to revise their social media policies, as necessary.