NLRB Report Reviews Social Media Enforcement Actions

On August 18, 2011, the Associate General Counsel of the National Labor Relations Board (“NLRB” or the “Board”) issued a report analyzing the Board’s recent social media enforcement actions. The report seeks to provide guidance to employers that want to ensure that their social media policies appropriately balance employee rights and company interests.

As we have discussed on our blog, the NLRB has been very active since late 2010 in enforcing employees’ rights to discuss working conditions through social media. The Board's numerous enforcement actions have focused on employees’ work-related statements on social media platforms such as Facebook, Twitter and YouTube. The enforcement actions have addressed employees’ social media activities in the context of their rights under Section 7 of the National Labor Relations Act to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employers may not discipline or terminate employees (either unionized or non-unionized) for exercising their Section 7 rights.

The report suggests that the NLRB views as protected a broad scope of social media activity that addresses working conditions. It also suggest that the Board sets a low threshold for finding that such activity is “concerted” – i.e., “undertaken with or on the authority of other employees, and not solely by and on behalf of the employee himself.” While each enforcement action represents a unique set of circumstances, generally, the NRLB has found employees’ social media activity to be protected when the statements expressed employees’ sentiment about working conditions, whether or not the actual postings involved one or more employees. Examples of activities the Board deemed protected include discussions on social media that implicated working conditions and that were initiated by one coworker in an appeal to other coworkers for assistance; postings provoked by a supervisor’s allegedly unlawful activity; and postings that vocalized employees' sentiment about working conditions that the employees expressed in off-line conversations, even where coworkers did not post comments to the initial post by one of the employees.

The report also sets out various employee social media policy provisions that the NLRB found to infringe on employees’ Section 7 rights. According to the report, the NLRB may view as unlawful (often because the Board viewed them as overly broad) social media policies that:

• Prohibit employees from posting pictures of themselves in any media, including the Internet, which depict the company in any way, including posting featuring a company uniform or corporate logo;

• Prohibit employees from making disparaging comments when discussing the company or the employees' superiors, coworkers or competitors;

• Generally prohibit, in the application to social media, offensive conduct and rude or discourteous behavior;

• Prohibit inappropriate discussions about the company, management or coworkers;

• Prohibit any use of social media that may violate, compromise or disrtegard the rights and reasonable expectations as to privacy and confidentiality of any person or entity;

• Prohibit any communications or posts that constitute embarrassment, harassment or defamation of the employer or its employees, officers, board members, representatives or staff members;

• Prohibit statements that lack truthfulness or might damage the reputation or goodwill of the employer, its staff or employees;

• Prohibit employees on their own time from using social media to talk about company business, from posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy, from disclosing inappropriate or sensitive information about employer, or from posting any pictures or comments involving the company or its employees that could be construed as inappropriate;

• Prohibit employees from using the company name, address or other information on their personal profiles;

• Prohibit employees from revealing personal information regarding coworkers, company clients, partners or customers without their consent; or

• Prohibit the use of employer’s logos and photographs or of the employer’s store, brand or product without written authorization.

As we have previously noted in the context of discussing the NLRB’s social media enforcement actions, the Board’s view of employees’ Section 7 rights in the context of social media requires employers to carefully review and adjust their communications and social media policies and practices. The Board's report further suggests that employers need to tailor their social media policies narrowly to protect company interests without infringing on employees’ rights.