As the title says, below is newly released guidance from the NLRB. It is not newly created. In fact, the Advice Memorandum was actually created in 2012 but just recently released to the public. Though tardy, it still provides quality insight into the Board’s decision-making process when determining whether social media policies are lawful.
- Requiring employees to identify their employer in a social media post and include a disclaimer that the post is the employee’s only and does “not necessarily reflect the views of the employer,” was lawful because employers have a legitimate interest in protecting themselves against unauthorized postings purportedly on their behalf and such a requirement does not unduly burden employees or stifle their Section 7 right to discuss working conditions.
- Prohibiting employees from disclosing “confidential” or “sensitive” information about the employer is unlawfully overbroad because it could be interpreted as unlawfully restricting the discussion of information concerning working conditions with co-workers and/or outside parties, like labor organizers.
- Requiring employees to obtain written approval before posting a link to the employer’s website was unlawful because it unduly hindered employees from exercising their Section 7 rights by prohibiting them from referring third parties to the employer’s website to support, or garner support, for their position. Notably, any work rule that requires employees to obtain permission from their employer to engage in Section 7 activities is unlawful.
- Prohibiting employees from publishing posts that are “embarrassing to another person, the employer, or customers” is unlawful because it bars employees from “discussing work-related complaints, particularly those involving their managers.” This prohibition is similar to the also unlawful prohibition on negative conversations about co-workers or managers or derogatory attacks on co-workers.
- Prohibiting employees from discussing working conditions and sharing information with co-workers about the terms and conditions of employment is unlawful.
- Requiring employees to express themselves on social media in a respectful manner is lawful when the employer’s other policies define “being respectful” and it does not curb an employee’s ability to exercise his or her Section 7 rights.
While most of these rules are not new or surprising to those who have been following the Board’s heavy-handed governance of social media over the past few years, these pointers are still good reminders for Employers to follow when reviewing or updating their own social media policies.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.