On July 15, 2013, the National Labor Relations Board (“NLRB”) released a memorandum providing further guidance on whether a company’s social media policy could be construed to stifle protected, concerted activity. Over the last two years, the NLRB Office of the General Counsel has issued several memoranda discussing the validity of employer social media policies in light of existing principles under the National Labor Relations Act (“NLRA”).
Section 7 of the NLRA grants employees in unionized and non-unionized workplaces the right to engage in concerted activities for the purpose of mutual aid or protection. Employers are prohibited under Section 8 of the NLRA from restraining employees from exercising their Section 7 rights. In Giant Food LLC, the Board found that aspects of the employer’s social media policy restricted Section 7 activity.
As discussed in a previous post, the more expansive the social media policy’s prohibitions, the more likely the policy will be found to limit Section 7 activities. In this case, the employer’s social media policy prohibited employees from posting “confidential” or “non-public information.” The Board held that the policy was overbroad because it did not include limiting language to alert employees that they could still post about terms and conditions of their employment. The Board also invalidated language in the policy that prohibited employees from posting the company’s logo or trademark, because employees could construe such prohibitions as limiting Section 7 activities like electronic or paper leaflets, cartoons, or picket signs in connection with a protest involving the terms and conditions of employment.
Finally, the Board ruled that prohibiting employees from photographing or videotaping the Employer’s premises violates Section 7 rights. The board reasoned that prohibiting photos and videos outright could restrict employees from posting videos such as picketing or other concerted activity.
All that being said, the Board found portions of the policy to be lawful. Employers may lawfully prohibit employees from defaming or discrediting the company’s products or services.
Given the recent trend of opinions from the NLRB, employers may wish to revisit their social media policies to include specific examples of prohibited conduct to make clear that employees are not prohibited from exercising their Section 7 activities on Facebook, blogs, or other social media outlets.
Heather Sherrod (Heather.Sherrod@nortonrosefulbright.com / +1 713 651 5163) a lawyer in Norton Rose Fulbright Houston’s intellectual property practice.
