Smile! The NLRB May Not Like Your Prohibition on Taking Photos

22 July 2013 Labor & Employment Law Perspectives Blog

A recent Advice Memorandum issued by the General Counsel’s Office of the National Labor Relations Board (NLRB) provides employers with yet another reason for concern. For those who may not know, from time to time, the Regional Directors of the NLRB seek the General Counsel’s advice on novel legal issues that may arise during the course of the Regions’ investigations of unfair labor practices. While advice memos do not establish legally binding precedent, they do provide insight into how the Board’s General Counsel views the state of the law.

In the case of Giant Food LLC, three separate local unions challenged various aspects of the company’s social media policy. The General Counsel concluded that, in its opinion, various aspects of the company’s social media policy violated employees’ Section 7 rights under the National Labor Relations Act. As readers of this blog will know, in recent years the NLRB has taken exception to a number of aspects  typically found in employers’ social media policies. Of interest in this memo is the company policy which prohibited employees from photographing or videotaping any part of the employer’s premises was, in the opinion of the General Counsel, restrictive of employees’ Section 7 rights. In an era where so many employees carry smart phones, many employers are concerned about protecting their technology and intellectual property and have instituted broad prohibitions against any photographs or video taken in the workplace.

The General Counsel concluded that a blanket prohibition against employees taking photographs and video would “reasonably be interpreted to prevent employees from using social media to communicate and share information regarding the Section 7 activities through pictures or videos, such as an employee engaged in prohibited or other concerted activities.”

Like previous NLRB reviews of social media policies, the General Counsel is concerned with broad, all-encompassing prohibitions. The Board has in the past approved narrowly drawn social media policies. For example, the Giant Food memo cites Flagstaff Medical Center, 357 NLRB No. 65 (2011), where a hospital’s ban on taking photographs of patients or property was upheld based upon the very significant privacy issues at stake in a hospital setting.

The General Counsel’s memo in Giant Food is also insightful in that it rejected the “Savings Clause” contained in the employer’s social media policy. A Savings Clause is something to the effect of “This policy will only be enforced within the meaning of the National Labor Relations Act.” As the Board has upheld previously, a Savings Clause will not, in their opinion, cure what is an otherwise overly broad policy.

The takeaway for employers who have promulgated or are considering drafting social media policies is that if you want to pass NLRB scrutiny, such policies must be specific and very narrowly drawn. There are many legal issues to consider when drafting such policies, not just labor relations. Employers should not forget that the National Labor Relations Act does not just apply to unionized workplaces. This is an evolving area of the law and employers should stay abreast of the latest developments.

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