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On August 18, 2011, the National Labor Relations Board's (NLRB's) general counsel issued a report detailing the agency's efforts to pursue administrative enforcement actions against employers with overly broad social media policies. The report also details unfair labor practice allegations where employees, of unionized and union-free employers, engaged in protected concerted activities in online social media forums.
The NLRB's general counsel found many prohibitions in employers' social media policies to be unlawfully over-broad because they deter employees from engaging in protected concerted activity online. For example, the NLRB found several things in these policies to be unlawful, including but not limited to prohibitions on: "disparaging remarks when discussing the company or supervisors;" "offensive conduct;" "rude or discourteous behavior;" "inappropriate discussions;" "using any social media that may violate, compromise or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity;" "communication or post that constitutes embarrassment, harassment, or defamation;" "statements that lack truthfulness or that might damage the reputation or goodwill" of the company; "posting anything that [the employees] would not want their supervisor to see or would put their job in jeopardy;" "use of the employer's logos and photographs of the employer's store, brand or product without written authorization."
The report also details cases where the NLRB pursued unfair labor practice allegations against employers who terminated employees for engaging in protected concerted activity online. The online commentary that the NLRB has sought to protect includes examples that many employers would find to be disparaging, profane, and disloyal.
This report reflects the position of the NLRB's General Counsel, but those positions have yet to be validated by the NLRB itself or the Courts of Appeals charged with enforcing the NLRB's decisions. Given the contents of this report, however, employers should consider obtaining legal advice to carefully craft their social media policies and apply those policies in a manner that does not run afoul of the National Labor Relations Act ("NLRA").
A full copy of the report can be viewed at www.nlrb.gov.