NLRB Continues to Click “Dislike” on Social Media Policies

07 November 2016 Labor & Employment Law Perspectives Blog
Authors: Richard M. Albert

As the National Labor Relations Board (NLRB) continues its assault on employer personnel policies, certain policies seem to be getting particular attention. Various recent NLRB opinions have imposed a number of limitations on employee social media policies.

Even those employers without unions need to pay close attention to these opinions and think very carefully when implementing and enforcing social media policies.

The NLRB has focused its criticism on policy language, which it deems unlawfully restrictive of employee rights to post comments and information about their employer or co-workers. Some of the more frequent issues that are coming up in NLRB reviews of social media policies include the following:

Requiring disclaimers that a post does not represent the Company’s views
Some social media policies state that employee postings about company-related matters must declare that the views represented are those only of the employee, and do not reflect the views of either the company or co-workers.  The NLRB has rejected such an affirmative obligation, and employers are well advised to delete any such requirement from their policies. In its place, employers might consider a requirement that employee postings not create the impression that they are speaking in any official capacity on behalf of the employer.

Prohibiting “confidential information” posts
Social media policies often state that employees should not post “confidential” information. The NLRB has challenged the legality of such vague language, arguing that it unlawfully limits employee rights to post and share information with others about their employer. Employers should consider providing more descriptive language that captures their concerns in a more specific manner.

For example, language prohibiting posting of matters such as “company confidential financial information,” “company marketing or strategic plans,” or “internal company information not available to the general public” is far more likely to pass NLRB muster.

Prohibiting anonymous posts
Some companies require that individuals posting about their employer must identify themselves as employees. The NLRB considers this requirement unlawful. According to the NLRB, employees have the right to post items about their employer anonymously, even if such postings are highly critical.

Vague descriptions of prohibited activity
If employers want to place any limitations on what employees can say about the company or its employees when posting, they must be careful about how they describe those limitations. Employers should not make broad statements to the effect that employees may not post anything which would “damage the company’s reputation.” The NLRB finds such statements to be overbroad, and therefore unlawfully limiting. Similarly, the NLRB has often struck down broad policy language prohibiting posts that are deemed to be “inappropriate,” “disrespectful,” or “offensive.” While NLRB opinions in this area are anything but consistent, employers should instead consider limitations that reflect specific unlawful conduct —such as limitations on “threatening,” “harassing,” or “discriminatory” postings.

Restrictions on posts about intellectual property
Broad restrictions on posting employer intellectual property are also likely to draw NLRB fire. For example, the NLRB has found unlawful a prohibition on the use of “company logos, trademarks, graphics, or advertising materials” in social media postings. The NLRB’s “logic” is that employees must have some freedom to use such items in postings about their employer.

Regardless, the NLRB has approved limitations, mandating that employees not use employer intellectual property for their own commercial purposes.  Additionally, policy statements to the effect that employees must follow all applicable trademark and other intellectual property laws when posting have also been upheld by the NLRB.

As the use of social media expands, so does the need for employers to have carefully crafted policies that lawfully deal with the many issues that may arise in this area. Employers who have not recently reviewed their social media policies to ensure legal compliance should consider doing so. While enforcement of facially lawful social media policies can also be a daunting proposition, the starting point for avoiding problems in this area is a carefully worded policy that can survive NLRB review.

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