Employees with Smartphones: An Employer’s Nightmare; the NLRB’s Dream

The NLRB recently issued an advice memorandum that said an employer policy prohibiting employees from photographing or video recording the company’s premises, processes, operations, or products, including confidential information without the company’s permission violation the National Labor Relations Act. 

Let that one sink in before reading more. 

Decades ago, the NLRB concluded in Flagstaff Medical Center that a policy prohibiting the use of electronic equipment during work time including “the use of cameras for recording images of patients and/or hospital equipment, property, or facilities” did not violate the Act because employees would not reasonably interpret the rule as restricting Section 7 activity; they would interpret the rule as a legitimate means of protecting privacy rather than a tool to restrain protected activity. Furthermore, there was no evidence that the hospital enacted the rule in response to Section 7 activity or applied the rule to prohibit Section 7 activity.

However now, the NLRB General Counsel (yep, the guy who has a personal crusade against social media policies) opined that a portion of an employer’s social media policy prohibiting employees from photographing or video recording the employer’s property was unlawful. He said that the policy could reasonably be interpreted to prevent employees from using social media to communicate and share information regarding Section 7 rights through pictures and/or videos.

The General Counsel also deemed unlawful the employer’s ban on using of the Company’ logo, trademark or graphics without prior written approval. Why? Because employees could understand the rule to prohibit the use of logos, trademarks, or graphics on leaflets, cartoons, pickets signs, and other material used to engage in protected Section 7 activity.

Thankfully, the General Counsel upheld the company’s prohibition against an employee defaming the employer’s goods and services through social media. Glad to hear employees are still not allowed to defame a company on Facebook.

The takeaway from this case: 1) know the NLRB’s stance on all things social media before implementing a social media policy; and 2) tailor your policy to the specifics of your company to avoid sweeping, overly broad language that may infringe on an employee’s Section 7 activity.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. To become a member of Austin Legal’s Concierge Legal Services, you can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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