The National Labor Relations Board’s (NLRB) most recent report on case developments arising out of employer social media policies provides some useful information on what is considered lawful and unlawful by the NLRB.
In general, rules in social media policies that are ambiguous and do not explicitly make clear to employees that they are not intended to infringe on any rights protected by Section 7 of the National Labor Relations Act (NLRA) will be considered unlawful. However, social media rules that provide explicit examples of prohibited conduct will likely be allowed.
Also, a “savings clause” contained in an employer’s social media policy will not generally make unlawful provisions otherwise lawful. A savings clause is a broad general statement included in a social media policy declaring that the policy should not be construed or implied to infringe on the rights guaranteed by the NLRA. The NLRB found that employees may not interpret the savings clause to mean that protected activities would be permitted.
Other highlights from the report include:
- Any rules that could be interpreted as prohibiting employees from discussing and disclosing information regarding the conditions of their employment are UNLAWFUL.
- Any rule that requires employees to secure permission from the employer before engaging in activities protected by Section 7 of the NLRA is UNLAWFUL.
- Any rule that prohibits an employee from using the employer’s logo or trademark, without more explanation, is UNLAWFUL.
- Any rule that may be interpreted to discourage employees from engaging in activities protected under Section 7 of the NLRA is UNLAWFUL.
- Any rule that prevents an employee from communicating with the media is UNLAWFUL.
- A rule that requires an employee to receive authorization before posting anything in the employer’s name is LAWFUL.
- A rule that prohibits employees from revealing the employer’s secret, confidential or privileged information on any public site is LAWFUL.
In addition, the report also includes a copy of one employer’s policy that the NLRB deemed entirely lawful. The policy itself cites to specific examples of prohibited conduct. Other employers can benefit from this policy as a model for drafting or modifying their own policies to comply with the NLRB’s requirements. The full report and example policy may be viewed by clicking here.
Please contact our team if you need assistance drafting a Social Media Policy for your company.