Surprise! NLRB Approves Employer’s Challenged Social Media Policy

In somewhat of a surprise, recently the NLRB affirmed an Administrative Law Judge’s decision, which had rejected the NLRB General Counsel’s challenge to a portion of an employer’s social media policy as unlawful. The employer, Landry’s Inc., which operates various enterprises, including Bubba Gump Shrimp Restaurants, Inc., had adopted a social media policy in its employee handbook that included the following language:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.

The General Counsel challenged this language as unlawful on the grounds that Bubba Gump employees reasonably would construe the language to prohibit protected activity under the NLRA. Both the ALJ and NLRB panel (“Board”) hearing the appeal disagreed.

In affirming the ALJ’s decision, the Board determined that employees reasonably would not construe the policy to prohibit protected activity. The Board noted that the at-issue language referenced “morale” and “being civil to others and their opinions”, which reflected the policy’s intent (1) to regulate the manner in which employees posted information, not the content of the postings, (2) to promote good morale among employees, and (3) to avoid workplace conflict among employees that could impact negatively Landry’s business. Also, the Board emphasized that the policy did not prohibit employees from discussing the types of information—such as personnel information, compensation information or employee work complaints—that typically would render a policy unlawful under the NLRA.

While the Board’s decision in this case is a positive development for employers given the NLRB’s generally hostile approach to social media policies that seek to restrict or set specific boundaries regarding what issues employees can discuss, it probably should be viewed as an outlier rather than as a sign of any real change in the NLRB’s position. Employers should remain particularly careful not to include language in their social media policies that reasonably could be interpreted by employees to prohibit discussion of workplace complaints, compensation issues or personnel information.