Newly Released NLRB Advice Memorandum Finds Several Provisions of Employer’s Social Media Policy Unlawful

In a recently released Advice Memorandum, the NLRB Office of the General Counsel provided some further guidance on how provisions of an employee social media policy could run afoul of Section 8(a)(1) of the NLRA. That Section prohibits employers from interfering with the exercise of employees’ rights to organize under Section 7 of the NLRA.

The Advice Memorandum, which addresses U.S. Security Associates, Inc.’s Personal Blogging and Social Networking Policy, was issued back in 2012, but only recently became publicly available. The Memorandum includes the following findings regarding the at-issue policy:

• The provision requiring that employees that have identified their employer in a social media post also include a disclaimer stating that the post is the employee’s only, and does “not necessarily reflect the views of [the] employer,” was lawful. The Memorandum explains that the employer “has a legitimate interest in protecting itself against unauthorized postings purportedly on its behalf,” and the requirement “would not unduly burden employees in the exercise of their Section 7 right to discuss working conditions.”
• The provision prohibiting employees from disclosing “confidential” or “sensitive” information about the employer was unlawful. The Memorandum noted that reading that provision together with the employer’s definition of personnel records and other employee information as “confidential” rendered the provision unlawfully overbroad. As the Memorandum explained, the broad language of the provision could be interpreted as unlawfully restricting the discussion of information concerning working conditions with co-workers and/or outside parties, such as labor organizers.
• The provision requiring that employees obtain written approval before posting a link to the employer’s website was unlawful. According to the Memorandum, employees subject to this provision “will be hindered in exercising their [section] 7 rights if, when discussing their work-related concerns and complaints on social media, they cannot refer third parties to the [e]mployer’s website to support, and garner support for, their position.” And, any work rule that requires employees to secure permission from their employer to engage in Section 7 activities is unlawful.
• The provision prohibiting employee posts that are “embarrassing to another person, the [e]mployer, or customers” was unlawful because “[e]mployees would reasonably construe this rule to bar them from discussing work-related complaints, particularly those involving their managers.” As the Memorandum noted, such a provision is similar to those the NLRB previously has found unlawful because they prohibited negative conversations about co-workers or managers or derogatory attacks on co-workers.
• For similar reasons—that it would reasonably be construed by employees as prohibiting discussion of working conditions and sharing information with co-workers about the terms and conditions of employment—the provision prohibiting employees from posting material on social media that “violates the privacy of another” was unlawful.
• The provision mandating that employees express themselves on social media in a “respectful manner” was lawful where, in the context of the employer’s other policies defining “being respectful” in a specific manner, it would not be construed as curbing employee activity associated with the exercise of Section 7 rights.

As the Memorandum makes clear, employers have to carefully craft their employee social media policies to avoid NLRB scrutiny. Employers are advised to carefully review and analyze this Memorandum, and consult with their counsel, when implementing an employee social media policy.