Basically, the NLRB ‘s position is that lots and lots (and lots) of provisions in most social media policies out there right now are unlawful.
First, it’s important to note that the law the NLRB enforces — the National Labor Relations Act — applies to all employers, not just those with unions.
In short, the NLRA prohibits employers from punishing employees for “protected concerted activity.” More specifically, an employer runs afoul of the NLRA if a policy interferes with an employee’s right to organize, join, assist and/or bargain with a union.
Official NLRB Model Policy
The guidance includes an official blessed-by-the-NLRB model social media policy. It’s a handy document to compare and contrast with your own policy to spot potential trouble areas.
What Does The Guidance Say Exactly?
Here are 9 specific problem areas identified by the NLRB:
Legalese Won’t Save You. Inserting standard boilerplate language like “nothing in this policy is intended to infringe upon NLRA rights” won’t insulate you from liability.
“Confidential Information”. Policies that ban employees from discussing “confidential information” are problematic unless they specifically exclude communications related to terms and conditions of employment (e.g., compensation) and are limited to “information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications.”
“Inappropriate Postings”. A policy prohibiting “inappropriate postings” is also problematic unless it is limited to items such as “discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
“Be Respectful”. An instruction to “be respectful” in the social media universe won’t fly. Instead, the NLRB recommends prohibiting clearly non-respectful language that is “malicious, obscene, threatening, or intimidating.”
“No Bullying”. Anti-bullying policies are OK if they target “offensive posts meant to intentionally harm someone’s reputation” or “posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”
“No Comment”. Policies instructing employees not to “comment on legal matters, including pending litigation or disputes” could be construed to prevent discussion of potential claims against the employer. Policies restricting external communications to certain individuals or departments or without prior permission from the company were also found to be unduly restrictive.
“Duty to Report”. Imposing a duty to report “any unusual or inappropriate internal social media activity” could be construed as an unlawful requirement to notify management of co-workers’ union-related activities.
“Controversial Topics”. Policies that warn employees to avoid “controversial topics” or not to “pick fights” in cyberspace were also deemed to be potentially unlawful, as are policies encouraging employees to keep grievances internal rather than pursuing them externally.
“Think Carefully”. Even an instruction to “think carefully” when communicating with co-workers online was found to overly restrict one’s right to communicate with co-workers.
The Bottom Line
The fact that this is the third NLRB social media guidance in the past year makes it 187% clear that it will continue to target employer actions in cyberspace.
The NLRB clearly believes that most social media policies are unlawful. Compare your current policy to the above checklist and the model policy in the NLRB’s guidance and please please please talk to your favorite employment lawyer to make sure that your organization is on the right side of the law.