On January 1, 2017, the National Labor Relations Board (“NLRB”) released an advice memorandum (dated September 22, 2016) that reviewed and approved Northwestern University’s revised Football Handbook’s social media policy. The NLRB Office of the General Counsel, which prepared the advice memorandum, was asked to advise whether the university’s Football Handbook policies, including its social media policy, were lawful.
First, the NLRB General Counsel’s Office assumed for the purpose of its review that Northwester’s football players are “employees” as defined by the National Labor Relations Act (“NLRA”). Next, the General Counsel’s Office considered whether the Football Handbook policies violated Section 8 of the Act. By way of background, 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.
According to the memorandum, the university voluntarily revised its Football Handbook policies after it received a charge alleging that the policies violated the NLRA. The memorandum included relevant provisions from both the original and revised policy. Without providing any analysis, the General Counsel’s Office found that Northwestern’s current, revised policy is appropriate and lawful. However, the original policy language could be construed to prohibit Section 7 activity and was therefore unlawful.
Northwestern’s Original Social Media Policy
The original policy included the following provisions:
- Social networking websites may be regularly monitored by a number of sources within Northwestern University (e.g., Athletics Department, Student Affairs, University Police).
- Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassing or dangerous behaviors.
- Do not post any information, photos or other items online that could embarrass you, your family, your team, the Athletics Department or Northwestern University.
- Examples of inappropriate or offensive behaviors posted on social networking sites may include . . . Photos meant to demean the individuals included in the photo.
Northwestern’s Revised Social Media Policy
With a few modifications, the language above was found to be lawful:
- Publicly posted information on social networking websites can be seen by any person with a smart phone or internet access, including individuals a number of sources within Northwestern University.
- Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict harassing, unlawful or dangerous behaviors such as full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, unlawful activity or any content that violates Northwestern University, Athletics Department or student-athlete codes of conduct and/or state or federal laws.
- Do not post any information, photos or other items online that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity.
- Examples of inappropriate or offensive behaviors posted on social networking sites may include . . . Photos meant to harass, bully or demean the individuals included in the photo by offensive reference to their race, sex, disability, age, national origin, religion or any other status protected by law or Northwestern University policy.
Although the General Counsel’s Office did not provide any details as to why Northwestern’s former policy was unlawful and the revised policy lawful, previous NLRB guidance, discussed in previous posts HERE, HERE, and HERE, provide some helpful insight.
In previous memoranda, the General Counsel has condemned broad, undefined language – like bans on “disrespectful,” “inappropriate,” “offensive,” or “abusive” comments and posts. Instead, social media policies should specify what “appropriate” or “inappropriate” posts are, either through specific examples of what is covered or through limiting language that would exclude Section 7 activity.
Northwestern’s revised policy does exactly that, removing words like “embarrassing” and “inappropriate” and replacing them with examples of specific, unlawful conduct that the university does not want depicted in its football players’ social media posts. Companies may likewise be able to avoid running afoul of the NLRB by ensuring that their employee social media policies contain precise language and examples of prohibited behavior that fits within the context of their business.