November 29, 2012

The National Labor Relations Board (NLRB) has issued a few important decisions that shed light on another enigmatic question: whether and how employers can restrict their employees’ use of social media. Below is a summary of the NLRB’s nine most important edicts and how they impact your business.

1. Employers may prohibit employee “rants.” Under the National Labor Relations Act (the Act), when employees converse with each other about their workplace conditions, they engage in “protected concerted activity.” However, individual employee rants (e.g., when one employee posts inappropriate comments without engaging in dialogue with other employees), are not protected under the Act. And the NLRB has expressly ruled that employees may be disciplined or terminated for engaging in such public rants. Prohibiting this behavior in a social media policy does not violate the Act as long as it does not chill protected speech.

2. Employers may restrict employees’ commercial use of company marks.  While employees have the right (in fact, under certain circumstances, the obligation) to disclose the name of the company about which they are complaining or conversing on social media, employees do not have the right to use company logos and protected marks for commercial purposes. Importantly, however, an employer’s policy should clearly explain that restrictions on the use of company marks do not prohibit employees from making non-commercial use of the marks, such as in workplace or work-related discussions or in labor related activities (for example in connection with a legal protest about workplace conditions).

3. Savings clauses are recommended, but may not win the day. A “savings clause” is a statement such as “[n]othing in this policy should be construed or applied to prohibit employees’ rights under the National Labor Relations Act.” These clauses are valuable, and it is wise to include them. That said, recent decisions have held that it is unreasonable to expect employees to understand the Act well enough to know what provisions of a policy may not apply. Accordingly, the best practice is to include the clause, but also be transparently compliant with the Act.

4. Confidentiality clauses should be narrowly tailored. It is reasonable for an employer to restrict employees from disclosing company trade secrets in social media. However, employers cannot completely restrict employees’ rights to discuss wages, workplace conditions, and employee or company performance. Such discussions among employees are protected under the Act, even if held in a public or semi-public forum.

5. Generic or overly- broad “courtesy clauses” should be avoided. General prohibition of the use of colorful language, distasteful critiques, and unseemly remarks in social media (otherwise known as “courtesy clauses”) may be construed to restrict employees’ rights to publicly criticize their employer. The NLRB has held that courtesy clauses violate the Act. Poor taste does not undermine employees’ rights to discuss the terms and conditions of their employment. Employers may encourage employees to refrain from making insulting remarks or engaging in hateful speech in social media. However, employers may not impose wholesale restrictions.

6. Restrictions on outside and/or unauthorized interviews may violate the Act. For reasons like those discussed above, the NLRB has ruled that policies prohibiting employees from engaging in outside or unauthorized interviews violate the Act. However, unlike courtesy clauses, the NLRB upheld a clause in a social media policy that prohibited “bad attitudes.” Essentially, this means that while an employee has the right to speak publicly and even distastefully when engaged in discussion with other employees, the employee does not have the right to act offensively in outside and unauthorized interviews about the company. These types of interviews are not “concerted activities” and therefore are not protected by the Act.

7. Opinions are largely protected. Expressing an opinion in social media discussions among employees, even if an opinion is factually incorrect, is protected under the Act. While this may seem counterintuitive, the NLRB reasons that when employees engage in discussion about workplace conditions, their comments may not always be factually accurate. Yet, requiring absolute accuracy is viewed to oppose employees’ rights to engage in protected activities. Simply put, the purpose of discussion is to come to a collective understanding or discussion and, in so doing, people must be permitted to express their opinions, even if their statements are not entirely factually accurate.

8. Social media policies implemented in response to union activities (or attempts to unionize) are particularly scrutinized. Enough said.

9. Employers remain entitled to enforce important workplace policies, even in the context of social media. Employers retain the right to prohibit sexual harassment, workplace violence and threats of violence, sabotage, and/or abusive and malicious activity. And employers also may limit employees’ use of social media at work, during working time, and/or on company equipment. Finally, even if employees are engaging in protected concerted activity, an employer can suggest that they should exercise good judgment and caution employees that if their conduct violates the rights of other employees or third parties, it may result in liability to these individuals. Keep in mind that most provisions held by the NLRB to be unfair labor practices were written as “absolutes” or “mandates.” Polite and useful suggestions are acceptable as long as it is clear that they are just that.

With these principles in mind, employers should take a look at their current policies and practices and make sure they don't run afoul of the Act.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.