Jun 112012

You probably know that President Obama’s National Labor Relations Board has been somewhat more activist than its predecessors, taking action (since withdrawn) against Boeing for trying to open a plant in union-unfriendly South Carolina and issuing regulations (since enjoined) requiring employers to post notices informing their employees about their rights to organize. As I’ve blogged about before, NLRB’s Acting General Counsel (acting, because the President can’t get the Senate to confirm him) has been busy trying to police company social media policies, out of the fear that these policies may impinge on employees’ rights.

Over the past year, the NLRB’s Acting General Counsel has issued a set of three guidance documents (here, here and here) evaluating social media policies for compliance with the National Labor Relations Act. Not surprisingly, these documents take an aggressive approach to these policies.

Just for fun, here’s a little quiz on provisions in social media policies that the Acting General Counsel has opined on.  Some of these are excerpts from the actual text; in other cases, I’ve tried to figure out what the text was from the AGC’s commentary.  For each of these, do you think the AGC found the language to be lawful or unlawful?”

Employees are prohibited from posting information on any social networking sites that could be deemed material non-public information

Anybody familiar with securities laws should be aware of this particular concern — disclosure of material nonpublic information is a key element of insider trading.  So, the AGC should be fine with this, right?  Nope.  Here’s what that AGC said: ‘. . . the rule prohibiting employees from posting information regarding the Employer that could be deemed “material non-public information” . . . is unlawful.  The term . . . is so vague that employees would reasonably construe it to include subjects that involve their working conditions.

Result: Illegal

Respect financial disclosure laws.  It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities.

This doesn’t seem a whole lot different than the previous example.  Yet, the AGC ruled it legal, apparantly because it’s more limited and doesn’t use a term like “material non-public information” that an employee may not understand.

Result: Legal

Employees are prohibited from using any social media to violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity.

This should be pretty straightforward, right?  Not in this case, “absent any limitations on what was covered . . . [this rule] could reasonably be interpreted as prohibiting protected employee discussion of wages and other terms and conditions of employment.”

Ruling: Illegal

 Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trade secrets may include information regarding the development of  systems, procedures, products, know-how and technology. Do not post internal reports,  policies, procedures or other internal business-related confidential communications.

Looks a lot light the last one, right?  In this case, however, the rule “provide sufficient examples of prohibited disclosures . . . for employees to understand that it does not reach protected communications about working conditions.”  As a result, there was no problem.

Result: Legal

Respect all copyright and intellectual property laws. For [Employer's] protection as well as your own, it is critical that you show proper respect for the laws governing trademarks, including [Employer's] own copyrights, trademarks and brands.  Get permission before reusing others’ content or images.

Online infringement of intellectual property is a big problem on the Internet, and the AGC found that the first part of this rule isn’t a problem, largely because it doesn’t prohibit anything, but urges employees to respect the law.  The last, part, though, was a problem because it may impact the ability to take picture of, say, picket lines or an employee working in an unsafe condition.

Result: Partially Illegal.

No Team Member is required to participate in any social media or social networking site (unless required as part of the job), and no Team Member should ever be pressured to ‘friend,’ ‘connect,’ or otherwise communicate with another Team Member via a social media outlet.

 Employers cannot limit employees’ ability to organize or to communicate with each other about their working conditions, including via social media.  However, in this case, the restriction was only against pressuring each other to connect, and this was legal.

Result: Legal

You may not make any communication or post to a Social Media site that constitutes embarrassment, harassment or defamation of the [Employer] or of any employee, officer, board member, representative, or staff member.

Employees have a right to criticize their employer’s labor policies and treatment of employees.  In this case, the AGC held that this policy was overbroad because it did not contain any exclusion for these criticisms.


Here’s my takeaway: employers need to ensure that their social media policies cannot be construed to limit their employees protected labor activities, such as organizing themselves or complaining to the press about working conditions.  Unfortunately, this actually has to be worked into the policy itself, through examples and limitations — the AGC believes that boilerplate “savings clauses” that say something like “this policy shall not be construed to limit your rights under the National Labor Relations Act” are insufficient.