Late last month, National Labor Relations Board, through its acting general counsel, issued a third report on social media cases. You can find a copy of the report here. In this most recent report, the NLRB reviews a number of employers’ social media policies and reaches some baffling conclusions that the policies are contrary to the NLRA. For employers, the NLRB’s latest missive will make it much more difficult to adopt a social media policy that actually limits what an employee can say about the company and is acceptable to the NLRB.
Just one example of the interesting conclusions is that policies that state “don’t release confidential guest, team member or company information . . .” is illegal because it could be interpreted as prohibiting employees from discussing or disclosing information regarding their own conditions of employment. Similarly, policies which request employees to get permission before using others’ content or images and “avoid harming the image and integrity of the company” are illegal.
The NLRB did approve some social media language. These include: (1) employers may urge employees to respect copyright or intellectual property laws, (2) employers may suggest that employees use their best judgment and exercise personal responsibility, and (3) employers may prohibit employees from discussing the safety performance of the company’s systems, components for vehicles, and secret, confidential or attorney-client privileged information.
The report, in its last three pages, does provide a sample social media policy. If you want to be absolutely sure that the NLRB will not challenge your social media policy, this is the one you should be using. Otherwise, we will have to wait until the courts weigh in on the issue as to how broad an employer’s social media policy may be.