A couple of weeks ago I blogged about the increasing importance of social media policies, particularly in light of recent developments from the National Labor Relations Board (NLRB) affecting employers with social media policies. The NLRB released yet another report last week (the 3rd in 9 months) addressing social media policies.
Please see my prior post for the quick overview on the subject. In this post I am going to highlight a few of the issues that the NLRB addressed in this most recent report.
1. “Don’t release confidential guest, team member, or company information…”
The NLRB found this to be unlawful because it could be reasonably interpreted as prohibiting employees from discussing and disclosing information about their own terms and conditions of employment, as well as conditions experienced by other employees – these are rights that are clearly protected by Section 7 of the NLRA.
2. “Treat Everyone With Respect: Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.”
The NLRB found this clause to be overly broad and not specific enough about what communications are prohibited, thus it could be interpreted to restrict communications about the terms and conditions of employment.
3. “Respect all copyright and other intellectual property laws. For [Employer]’s protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer]’s own copyrights, trademarks and brands. Get permission before reusing others’ content or images.”
The NLRB found most of the above policy to be acceptable, except the portion about requiring permission to be obtained. Requiring employees to obtain permission before using pictures of other employees on a picket line, or using the employer’s name/trademarks for organizing activities would interfere with their rights to engage in protected Section 7 activities.
4. “[Employer]’s Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act).
The above “savings clause” was found by the NLRB to not serve to offset any ambiguities in the policy that could be interpreted to violate the NLRA. The NLRB has mentioned this in prior reports and continues to not allow employers to escape the NLRA requirements through inclusion of a savings clause.
The examples cited above are just a small portion of those the NLRB discussed in their most recent report. The NLRB’s interpretation of the National Labor Relations Act (NLRA) seems to many attorneys to be overly broad. As you can see above (and as I pointed out in my prior post) – many of the clauses that the NLRB is taking issue with are very commonly found in social media policies and employee handbooks. It is up for discussion how enforceable the NLRB’s current interpretation of the NLRA is, as has not yet been court-tested. However, employers should consider having their policies reviewed in light of the continued new guidance from the NLRB.