Is Your Social Media Policy Overbroad?

The NLRB’s Office of the General Counsel recently published an advice memorandum regarding an employer’s social media policy that provides yet another example of the NLRB’s disapproval of policies that use overbroad language without specific examples of prohibited conduct.

The employer, KMOV-TV (owned by Belo, Corp.), had implemented a social media policy that included a section entitled “Personal Activity,” which applied to all employees, regardless of their job responsibilities. That section included the following provisions:

• Adhere to Belo’s company harassment and retaliation policies. It is the responsibility of employees to notify management and/or Human Resources immediately of possible sexual or other unlawful harassment without the concern of reprisal or retaliation. Do not post insulting, embarrassing, hurtful or abusive comments about other company employees online. Do not share pictures of other Belo Employees unless the other employee is comfortable with it. Belo expects its employees to treat their co-workers with respect and courtesy at all times.
• Avoid the use of offensive, derogatory, or prejudicial comments.
• Do not defame Belo companies, their employees, clients, customers, audience, business partners or competitors. Indeed you should avoid making defamatory or libelous comments and postings in general as others may attempt to impute these comments to your employer or you as an employee.
• Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors, or customers.

According to the Office of General Counsel’s memorandum, only the last provision—regarding disclosure of confidential information—did not violate National Labor Relations Act Section 8(a)(1)’s prohibition on policies that reasonably tend to discourage employees from exercising their Section 7 rights to engage in protected concerted activities. All of the other provisions were deemed to be in violation.

The first provision’s ban on posting “insulting, embarrassing, hurtful or abusive comments about other company employees online” and the second provision’s instruction to “[a]void the use of offensive, derogatory, or prejudicial comments,” were deemed overbroad because neither contained sufficiently specific definitions or examples of prohibited behavior such that it would be clear to employees that the provisions did not encompass protected Section 7 behavior.

The first provision’s prohibition against “shar[ing] pictures of other Belo Employees unless the other employee is comfortable with it” was determined to be unlawful because employees reasonably could interpret it to preclude them from using social media to post pictures of fellow employees engaged in protected activities like strikes or working in unsafe conditions.

The third provision’s prohibition against employees “defam[ing] Belo companies [or] their employees” or “making defamatory or libelous comments and postings in general” was deemed overbroad because it did not have sufficient limiting language and reasonably could be construed by employees to prohibit protected activities like criticizing the employer’s policies.

On the other hand, the NLRB approved the provision prohibiting disclosure of confidential financial data and non-public proprietary company information, finding that this language reasonably would be interpreted by employees to apply only to the employer’s confidential business information, and not to discussion of wages or working conditions.

In sum, the NLRB’s advice memorandum confirms again that, to pass muster with the NLRB, social media policies should be drafted carefully to avoid overbroad language that could be construed to prohibit employees’ Section 7 rights. As we have noted in prior posts, social media policies acceptable to the NLRB will, at minimum, define specifically prohibited conduct and provide examples of such conduct where reasonably possible.