The Office of the General Counsel (OGC) of the National Labor Relations Board (NLRB) recently released another advice memorandum providing enforcement guidance on employer social media policies. This time, the OGC reviewed a company social medial policy which required employees to post a specific disclaimer that they were sharing their own views and not the views of the company if they identified themselves as company employees on any website or blog.
The relevant portion of the policy stated:
If you identify yourself anywhere on a web site, blog, or text as an employee of USA . . . we require that you put the following notice in a reasonably prominent place on your site: “The views expressed on this web site/blog are mine alone and do not necessarily reflect the views of my employer, US Security Associates, Inc.”
The OGC found this provision to be lawful. It explained that posting this disclaimer would not be burdensome for employees to implement or infringe on their Section 7 right to discuss working conditions. By way of background, the National Labor Relations Act protects an employee’s right to self-organize, form, join or assist unions, collectively bargain, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. Although the advice memorandum does not constitute binding precedent, it provides useful guidance for employers looking to implement a social media policy with disclaimer language.
In an effort to provide additional guidance, the OGC reviewed the remainder of the social media policy. It determined that:
- a provision encouraging employees to express themselves on social media in a “respectful manner” is not unlawful;
- provisions preventing employees from publishing on websites or blogs “confidential information” and “material that violates the privacy of another” are unlawfully overbroad and could be construed to inhibit Section 7 rights;
- a provision preventing employees from disclosing “sensitive information” on websites or blogs is unlawfully overbroad because the meaning of sensitive information was ambiguous; and
- a provision prohibiting employees from referring to their employer’s website without prior written approval from the employer is unlawful. The OGC explained that employees could be hindered in exercising their Section 7 rights if they cannot refer third parties to the website to garner support for their position.
This latest advice memorandum highlights the importance of a carefully crafted social media policy. Past blog posts have discussed other guidance from the OGC and provided examples of carefully drafted and clearly defined social media policies, including:
- Policies banning photos, videos and confidential information unlawful
- The NLRB and employer social media policies
- Owning your social media: Drafting a social media use policy
Heather Sherrod (Heather.Sherrod@nortonrosefulbright.com / +1 713 651 5163) a lawyer in Norton Rose Fulbright Houston’s intellectual property practice.