By Allen Smith
In a May 30, 2012, report whose guidance is likely to be challenged in the courts, the National Labor Relations Board (NLRB) cautioned that it believes that numerous common clauses in social media policies violate the National Labor Relations Act (NLRA).
While Acting General Counsel Lafe Solomon’s report outlined six cases where it found clauses in employers’ social media policies to violate Section 7 of the NLRA, it provided in full one social media policy that was deemed lawful in its entirety.
Employers might assume that it’s OK to prohibit employees from disclosing confidential information on social media websites. That’s not necessarily so, according to the NLRB.
In a retailer’s social media policy, the NLRB took issue with the employer prohibiting employees using social media from releasing confidential guest, team member and company information.
Sound innocuous enough? Not to the NLRB, which stated that this phrase “would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7.”
In addition, it found unlawful provisions that threaten employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information.
“Those provisions would be construed as requiring employees to report a breach of the rules governing the communication of confidential information set forth above. Since we found those rules unlawful, the reporting requirement is likely unlawful.”
So, what if the employer’s policy instead prohibits employees from revealing nonpublic company information on any public site? This would encompass any topic related to the financial performance of the company, information that has not already been disclosed by authorized persons in a public forum and personal information about another employee, such as performance, compensation and status in the company, another policy provided.
No, no, cautioned the NLRB. “Because this explanation specifically encompasses topics related to Section 7 activities, employees would reasonably construe the policy as precluding them from discussing terms and conditions of employment among themselves or with nonemployees.”
And the NLRB didn’t like a rule prohibiting employees from posting information regarding the employer that could be deemed “material nonpublic information” or “confidential or proprietary.”
In addition, the NLRB was troubled by social media policy clauses that recommended: “Adopt a friendly tone when engaging online. Don’t pick fights. Social media is about conversations. When engaging with others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversation. Remember to communicate in a professional tone. … This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion. Don’t make any comments about employer’s customers, suppliers, or competitors that might be considered defamatory.”
Sound reasonable? Not to the NLRB, which “found this rule unlawful for several reasons. First, in warning employees not to ‘pick fights’ and to avoid topics that might be considered objectionable or inflammatory—such as politics and religion, and reminding employees to communicate in a ‘professional tone,’ the overall thrust of this rule is to caution employees against online discussions that could become heated or controversial. Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion. Without further clarification of what is ‘objectionable or inflammatory,’ employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.”
So, what exactly can an employer say in its policy?
An employer may prohibit users from posting anything on the Internet in the name of the employer or in a manner that could reasonably be attributed to the employer without prior written authorization from the president or the president’s designated agent.
And it’s OK to have a prohibition on representing any opinion or statement as the policy or view of the employer or of any individual in their capacity as an employee.
The report concluded with a verbatim copy of a social media policy approved in full. That policy provides that employees must:
Know and follow the rules.
Be honest and accurate.
Post only appropriate and respectful content.
And some language about confidentiality apparently is lawful, as the NLRB approved this policy’s statement that employees “maintain the confidentiality of employer trade secrets and private or confidential information. 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.”
The employer could require employees to respect financial disclosure laws when online and to not create a link from their blog or social networking site to an employer website without identifying himself or herself as an employer associate.
“Express only your personal opinions,” the approved policy also stated. “Never represent yourself as a spokesperson for the employer.”
The approved policy concluded by saying that “associates should not speak to the media on the employer’s behalf without contacting the corporate affairs department. All media inquiries should be directed to them. For more information—If you have questions or need further guidance, please contact your HR representative.”
Allen Smith, J.D., is manager, workplace law content, for SHRM.