On May 30, 2012, the Acting General Counsel of the National Labor Relations Board (the Board) issued his third report on social media. In this most recent report, the General Counsel analyzed several cases where the Board found that employer social media and computer use policies ran afoul of the National Labor Relations Act (NLRA).

In short, the NLRA grants employees (both union and non-union) the right to engage in “protected concerted activity.” These protected activities include the right of employees to freely and openly discuss issues related to their wages, hours and other terms and conditions of employment. The Board takes the position that the protections of the NLRA extend to employees’ use of social media networks.

The General Counsel provided numerous examples of policy provisions that infringe on employees’ NLRA rights, including:

• A provision generally condemning the posting “offensive, demeaning, abusive or inappropriate remarks on-line.” Rationale: The provision is overly broad and potentially could restrict an employee’s protected right to criticize its employer’s treatment of employees.

• A provision requiring that information shared about the company is completely accurate, not misleading, and non-public. Rationale: The provision would be reasonably interpreted to apply to discussions about a criticism of the employer’s treatment of its employees.

• A provision preventing an employee from commenting on company legal matters, including pending litigation or disputes. Rationale: The provision restricts employees from discussing the protected subject of employee claims or grievances against the employer.

• A provision instructing employees not to share confidential information with co-workers, including rates of pay, schedules, bonuses, etc. Rationale: Such a provision prohibiting employees from discussing information regarding the terms and conditions of their employment.

• A provision that cautions employees not to post information about which they are uncertain and to resolve any doubts as to whether they should post that information by checking the designated personnel. Rationale: Any rule that requires employees to secure permission from an employer as a prerequisite to engaging in protected activity violates the NLRA.

• A provision that cautions employees to treat everyone with respect by refraining from posting offensive, demeaning, abusive, or inappropriate remarks on-line and reminding them that they are expected to abide by the same standards of behavior in the workplace as well as in their social media communications. Rationale: The provision restricts communications that would include protected criticism of the employer’s labor policies and treatment of employees.

In light of the Board’s position, we recommend that our clients review their existing policies and procedures to ensure compliance with the NLRA. It is important to avoid the use of broad or vague terms and to specifically limit the scope of any restrictions. It is also necessary that policies are drafted in such a manner that reasonable employees will understand the policies prohibit only unprotected activities (e.g. racial slurs, sexual remarks, disclosure of trade secrets, etc.). Blalock Walters can effectively assist you with your handbook and policy audits, so please contact one of our employment law attorneys with any questions you may have.

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