National Labor Relations Board Acting General Counsel Lafe Salomon today issued a third report on social medial cases brought before the NRLB. The report details seven cases that came before the Board and identifies which policies the Board found unlawfully overbroad and which lawful. The NLRB rules apply to both union and non-union employers.
Whether a policy is acceptable is a very fact-specific question and the report details the facts that caused the Board to reach its decisions. But here are a few general guidelines gleaned from the report:
- The key issue is whether the policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Rules generally will be deemed unlawful when they are ambiguous and contain no limiting language or context making clear to employees that the rule does not restrict Section 7 rights.
- Prohibiting disclosure or discussion of “confidential” information is likely overbroad without language or examples to make clear the policy does not apply to discussions of terms and conditions of employment.
- Prohibiting all posting of the corporate logo is overbroad because it could restrict, for example, an employee posting a photo of picketing employees carrying a sign with a corporate logo.
- Requiring employees to come forward with questions about whether a post is acceptable is overbroad if the policy arguably covers Section 7 activity because employees cannot be required to ask permission as a precondition to engaging in Section 7 activities.
- Prohibiting employees from commenting on legal matters is overbroad because it restricts discussion of potential claims against an employer.
- Although employers can suggest employees resolve disputes through internal methods like talking to managers, employers cannot require employees to use such procedures rather than post their grievances online.
- Including a “savings clause” stating that the policy will not be construed in a way to restrict Section 7 rights will not cure an otherwise unlawful policy.
- A policy prohibiting “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours from home and on home computers” is lawful.
Perhaps the best part of the report is that it includes a policy that the Board found lawful in its entirety. The policy is a helpful example that employers can use when crafting their own policies.
If you would like assistance in drafting a specific policy for your company, we would be happy to help you.