The Acting General Counsel of the National Labor Relations Board has released three memorandums addressing whether employer social media policies violate the National Labor Relations Act. According to the rules, a company may not utilize a social media rule so overbroad that employees would reasonably interpret the policy as prohibiting or limiting Section 7 activities and rights, such as bringing up work-related criticisms, talking about wages or working conditions, and trying to start or prepare for group action. Five of the highlighted issues are:
• Broad nondisparagement orders. These are considered to be a violation, especially without statements clarifying that the regulation does not restrict Section 7 rights, which allow employees to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection.
However, if an organization incorporates nondisparagement verbiage in a list of other types of banned behaviors, compliance with the NLRA is achieved. The acting general counsel approved a pronouncement that “prohibited the use of social media to post or display comments about co-workers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer’s workplace policies against discrimination, harassment, or hostility” against those with protected status, class or characteristic such as age, race, religion, sex, ethnicity, nationality or disability.
Even with an overbroad nondisparagement directive, an enterprise is not liable for disciplining a staff member if the corporation establishes that the employee was not counseled or discharged for conduct permitted under Section 7. Other exceptions include proving that the employee’s behavior interfered with his own work, the work of other laborers or the operations of the business, and that the interference was the grounds for the reprimand.
• Subjective language. Even when a social media policy does mention Section 7 rights, it is not endorsed by the acting general counsel if it includes the usage of subjective words such as insubordination, appropriate, inappropriate, defamatory, unprofessional, private, offensive, rude, discourteous and disrespectful. Specific examples should be provided and imprecise vocabulary defined.
• Management approval. According to the memorandums, companies may not require prior management approval of any social media postings, since Section 7 includes protected conversations among associates. Urging staff to utilize internal means to resolve workplace problems, instead of social media, is permissible.
• Confidentiality. A confidentiality requirement is unlawful if it forbids the discussion of topics sheltered by the law with anyone outside the business. A statement rejected by the acting general counsel as too overbroad disallowed laborers from “disclosing or communicating ... confidential, sensitive, or nonpublic information concerning the company.” The policy would have been acceptable if context or illustrations showed the privacy issues the rule was shielding and clarified the allowance of Section 7 protected activities.
• No catch-all phrase. Companies have relied upon a catch-all disclaimer stating social media requirements are not intended to interfere with rights under the NLRA. However, this “savings clause” is insufficient if social media instructions are overbroad. Replace the disclaimer with a list of explicit restrictions or examples.
In light of the recent memorandums, current social media policies should be carefully reviewed and updated.
Lynne Haggerman, M.S., is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.
