New NLRB Report Stymies Employers’ Efforts to Reign in Employee Social Networking Activities

The prevalence of social media in today’s workplace is undisputed. With the lack of discretion often displayed on social media sites such as Facebook, it is no wonder employers seek to control inappropriate employee communications and the unauthorized dissemination of confidential employer information through policies restricting employee social networking activities. The National Labor Relations Board (the “Board”), however, has issued a new social media report that sets forth substantial limitations on employers’ efforts to regulate social networking activities. More important, the report puts employers on notice that most workplace social medial policies will be deemed in violation of the federal labor law if subject to the scrutiny of the Board.

In its May 30, 2012, Report of the Acting General Counsel Concerning Social Media Cases (“the Report”), the Board analyzed provisions of numerous social networking policies that, according to the Board, constitute impermissible restraints on rights accorded employees under Section 7 of the National Labor Relations Act (the “NLRA”) to freely discuss the terms and conditions of employment with fellow employees. In general, the Report suggests that the mere existence of a social media policy that could reasonably be construed by employees “to chill the exercise of Section 7 rights” is a violation of the NLRA. This would be the case even if the employer has not invoked the policy to discipline employees for social networking activities. Thus, the Board cautioned that social media policies should be narrow in their scope and clearly carve out protected discussions among employees concerning wages and benefits, discipline, working conditions and other the terms and conditions of employment.

Until recently, many of us would not have questioned a policy putting employees on notice that they may be subject to discipline for posting disparaging or defamatory remarks about the company and its employees. However, employers may be stunned to learn that such standard provisions are among those that the Board will view as impermissible under the NLRA. While the Report provides numerous additional examples, the following provisions deemed unlawful by the Board are illustrative of the Board’s expansive view of Section 7 rights.

• Blanket prohibitions on revealing non-public, confidential or proprietary company information and/or personal information about co-worker, such as his or her medical condition, performance, compensation or status in the company.
• Instructions that employees’ posts must be “completely accurate and not misleading.”
• Proscribing online “offensive, demeaning, abusive or inappropriate remarks” and communications that would be “inappropriate in the workplace” without specifying that the prohibition is limited to comments directed at an individual on the basis of age, gender, disability or other legally protected status.
• Discouraging employees from “friending” co-workers.
• Encouraging employees to resolve their concerns in person and through internal resources.

In each of the foregoing examples, the Board found that employees could construe these provisions to prohibit criticism of the employer’s labor policies, treatment of employees, and other protected discussions about wages and terms and condition of employment.

The Board also concluded that a general savings clause advising employees that the policy will not be applied to any employee communications protected under Section 7 will not cure any otherwise overbroad and ambiguous provisions of a social media policy. Only the inclusion of specific limiting language or context that would dispel any interpretation that the employer’s social networking guidelines capture Section 7 communications will save the rule. The following are some of the examples of social media rules the NLRB suggested would be acceptable:

• Provisions prohibiting bullying, harassment or discrimination, so long as the provision expressly provides that the prohibited communications are limited to those that are meant to intentionally harm one’s reputation or those that could create a hostile environment on the basis of race, sex, disability, religion or other status protected by anti-discrimination laws.
• Restrictions on unauthorized use of postings that are made in the name of or attributable to employer.
• Exhortations to be respectful, fair and courteous in the posting of comments, complaints, photographs or videos, when accompanied by examples of egregious conduct that is not permitted.
• Rules requiring employees to maintain confidentiality of trade secrets and private and confidential information, so long as the policy provides sufficient examples for employees to understand that it does not reach protected communications about working conditions.

Additional examples of overbroad social media provisions and a sample social media policy acceptable to the NLRB are contained in the Report available at the NLRB’s website.

It is important to note that the Report does not rise to the level of an enforceable regulation. Nevertheless, the takeaway from the Report is that most social networking policies implemented by employers to protect legitimate business interests would be viewed as an impermissible hindrance of employee rights under the NLRA should the policy come into the crosshairs of the Board. Policy language regarding social media must be specific so that it cannot reasonably be construed as limiting an employee’s right to discuss any terms and conditions of his/her employment. To ensure your social media policy falls within the parameters of the Board’s guidelines or for assistance in developing a social media policy that effectively protects the employer while not limiting the rights of its employees, contact your employment attorney.

PENDING NJ BILLS WOULD FURTHER RESTRAIN EMPLOYER’S EFFORTS TO MONITOR SOCIAL NETWORKING ACTIVITY

A bill prohibiting employers from requiring current or prospective employees to disclose their user name, password, or in any way grant the employer access to personal accounts or services through electronic communications was introduced in the New Jersey Senate (S1915) and Assembly (A2878) in early May 2012. The bill passed in the Assembly and will be taken up by the Senate in the fall . . . stay tuned for further developments.