Over the past few years, the National Labor Relations Board (“NLRB”) has begun to address the extent to which employers may control their employees’ use of social media to share employment-related content. Social media sites, such as Facebook and Twitter, provide an ideal platform for discussion and wide-spread dissemination of both fact and fiction, prompting some companies to try to restrict what employees may share online. The NLRB’s concern with workplace social media policies, which purport to limit employees’ online activities, is that restrictions on social media use may violate employees’ rights under the National Labor Relations Act (“NLRA”). Section 7 of the NLRA, codified at 29 U.S.C. § 157, protects “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB considers “concerted activities” to be those engaged in with other employees, including an individual employee’s efforts to enlist the support of fellow employees. Myers Industries, 281 N.L.R.B. 882 (1986). In order for an individual’s action to be “concerted,” the employee must engage in conduct with the purpose of initiating group action. Whittaker Corp., 289 N.L.R.B. 933 (1988). The interactive nature of social media sites makes it easy for individuals to reach out to co-workers, such that any work-related content eliciting or requesting a response from another user could arguably be classified as “concerted activity” and be protected by the NLRA.
Not all employee communications concerning the workplace are protected under Section 7. An employee’s expressions of an “individual gripe” or frustrations about a dispute at work are not “concerted activity.” See NLRB Memorandum OM 11-74 at 17 (Aug. 18, 2011). However, communications between employees or on behalf of other employees that “can reasonably be seen as affecting the terms or conditions of employment” will be protected. NLRB v. Mike Yurosek & Son Inc., 53 F.3d 261, 266 (9th Cir. 1995). Due to the broad spectrum of actions that could be considered protected, employer restrictions on the ability of employees to post about work on interactive websites have come under scrutiny.
Challenges to social media policies arise not because the policies contain explicit prohibitions on the exercise of employees’ Section 7 rights, which would be unquestionable violations, but because work rules and policies limiting online sharing may have the effect of discouraging employees from participating in protected activity. The NLRB has held that a work rule or policy constitutes an unfair labor practice where the rule at issue “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998). If employees would “reasonably construe” the language of a rule or policy to prohibit any form of Section 7 activity, the rule is a violation of the NLRA, even if implemented for a legitimate purpose. Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 647 (2004).
Types of violations found in social media policies
The Acting General Counsel of the NLRB has issued three memoranda containing guidance on what types of rules frequently contained in social media policies constitute violations of the NLRA.See NLRB Memorandum OM 11-74 (Aug. 18, 2011); NLRB Memorandum OM 12-31 (Jan. 24, 2012); NLRB Memorandum 12-59 (May 30, 2012) (All are available at:http://www.nlrb.gov/reports-guidance). The standard for determining whether a rule is a violation hinges on how a reasonable employee would interpret the rule. Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 647 (2004). Rules that are unclear or open to several reasonable interpretations are likely to be violations. The NLRB has found that both broad prohibitions on social media use, and ambiguous rules that do not contain sufficient clarification of their scope, could reasonably be construed by employees to restrict the exercise of Section 7 rights, and therefore violate the NLRA.
- Broad prohibitions
An employer’s social media policy cannot broadly prohibit employees from using negative language to talk about the employer. The NLRB has found rules prohibiting employees’ use of unprofessional or defamatory language on social media to be unlawful. See NLRB Memorandum OM 11-74 at 6 (Aug. 18, 2011). Similar provisions prohibiting all “disrespectful” conduct on social media or statements that could injure the employer’s reputation have also been rejected by the NLRB. Karl Knauz Motors, Inc., 358 N.L.R.B. No. 164, at *3-4 (Sept. 28, 2012). Protest of supervisory actions is protected under Section 7, and blanket prohibitions on statements that could be perceived as hostile, disparaging, or otherwise disrespectful of authority could be construed by a reasonable employee to prohibit protected discussion of workplace conditions, and therefore such broad prohibitions violate the NLRA. See NLRB Memorandum OM 12-31 at 23 (Jan. 24, 2012)(citing Datwyler Rubber & Plastics, Inc., 350 N.L.R.B. 669 (2007)).
- Ambiguous rules
The NLRB considers rules that are ambiguous as to their application to Section 7 activity to be in violation of the NLRA. A violation occurs where there is no limiting language to clarify or restrict the scope of the rule at issue, which could lead a reasonable employee to construe the rule to prohibit protected activities. See NLRB Memorandum OM 12-59 at 3 (May 30, 2012). Ambiguous rules may be valid if the social media policy illustrates the rule with examples of activities that are clearly illegal or unprotected, such that construing the rule to restrict protected activities would be unreasonable. Id.
- Prohibitions on public statements
Social media policies may not prohibit employees from posting public statements online or from speaking to reporters about the terms and conditions of employment. See NLRB Memorandum OM 11-74 at 23 (Aug. 18, 2011); NLRB Memorandum OM 12-31 at 13 (Jan. 24, 2012); Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252 (2007). Employers are also prohibited from requiring employees to obtain permission before discussing their jobs with the media. See NLRB Memorandum OM 12-31 at 14. Employers do have the ability to require employees to state that their views are their own and not those of the company. SeeNLRB Memorandum OM 12-59 at 23. But see Kroger Co., No. 7-CA-98566, 2014 NLRB LEXIS 279, at *12 (Apr. 22, 2014); Purple Commc’ns, Inc., 361 N.L.R.B. No. 126, 2014 NLRB LEXIS 952 (Dec. 11, 2014).
- Prohibitions on use of company’s name or service marks
Companies cannot prohibit the use of their names or service marks by employees on social media. The NLRB interprets Section 7 to allow employees to use their employers’ names or other identifying marks in conjunction with protected activity, such as communication with co-workers or the public about labor disputes. See NLRB Memorandum OM 12-59 at 23 (May 30, 2012). Use of names, trademarks, or logos in connection with Section 7 activity does not infringe an employer’s interest in the use of its intellectual property. Id. However, employers may prohibit the use of “confidential and/or proprietary information acquired in the course of employment.” Id. at 17. Employers should not attempt to discourage employees from discussing the fact that they work for a particular company, but they may protect proprietary information, as it is not inherent to a discussion of employer-employee disputes or working conditions. Id.
- No “savings clauses”
Employers cannot include broad prohibitions or ambiguous rules in their social media policies, even if they include a general statement that the policies are not intended to restrict Section 7 rights. Id. at 8. Allowing a “savings clause” would leave interpretation of the scope of particular rules to employees: Rather than a statement of the employer’s intent, the NLRB instead requires clear rules that could not possibly be reasonably construed to violate the NLRA. Employees are not expected to figure out how to exercise Section 7 rights and simultaneously comply with employer directives that appear contradictory.
- Limited prohibitions on use of company email addresses
The Register Guard decision, a 2007 NLRB ruling, allowed employers to prohibit the use of company email addresses to conduct any Section 7 activities. Register Guard, 351 N.L.R.B. 1110 (2007). However, the NLRB recently changed its position in Purple Commc’ns, Inc., 361 N.L.R.B. No. 126, 2014 NLRB LEXIS 952 (Dec. 11, 2014), and ruled that Register Guard“undervalued employees’ core Section 7 right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights.” Id. at *18. Under Purple Communications, the increasing importance of the medium of email communication was emphasized. Id. at *6. The NLRB adopted a presumption that employees whose employers have given them access to email may use that system to discuss the terms and conditions of employment during non-working hours, unless the employer can show special circumstances justifying a restriction. Id. at *5. Circumstances justifying a total ban on use of company e-mail for Section 7 activities should be rare. Id. at *14. The decision suggests that company email may be used to sign up for social media, a departure from past policy. See NLRB Memorandum OM 12-59 at 23 (May 30, 2012).
Lawful social media policies
Section 7 does not grant employees an absolute right to disparage their employers on social media. There remain some limits on the types of content that will be protected under Section 7. First, an employee’s statements may be so “opprobrious” as to lose their protection, though insulting a supervisor with various expletives has been found permissible. Atlantic Steel Co., 245 N.L.R.B. 814, 816-17 (1979). Similarly, public disparagement of a company’s product and business policies expressed “in a manner reasonably calculated to harm the company’s reputation and reduce its income” will not be protected if the statement is reckless or maliciously untrue. See NLRB Memorandum OM 11-74 at 9 (Aug. 18, 2011)(discussing NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 471 (1953)). The NLRB determines whether an expression has lost its protection according to a hybrid standard, which considers both disruption to the workplace and the degree to which the statements falsely disparage the employer’s products and services. See NLRB Memorandum OM 12-31 at 24 (Jan. 24, 2012). The difficulty is writing a social media policy that restricts negative content to the extent permitted without violating the NLRA. The NLRB warns that “great care must be taken to distinguish between disparagement and the airing of what may be highly sensitive issues.” See NLRB Memorandum OM 12-31 at 29 (Jan. 24, 2012).
In 2012, the NLRB issued a model social media policy containing language that is compliant with its recent decisions. See NLRB Memorandum OM 12-59 at 22-24 (May 30, 2012). The model policy balances employers’ legitimate interest in controlling employees’ conduct in the workplace with employees’ Section 7 rights. Specifically, the model policy includes substantive language permitting employers to prohibit conduct that is not protected under Section 7. Id. at 23. The model policy asks employees to “be respectful” of others in the workplace and attempts to negotiate the line between protected activity and “opprobrious” activity by prohibiting the posting of content “that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage[s] customers, members, associates or suppliers, or that might constitute harassment or bullying.” Id. at 22-23.
To avoid the problem of ambiguous language that could be interpreted to prohibit the exercise of Section 7 rights, the model policy includes examples of prohibited “disrespectful” posts that could not reasonably be considered protected: those intended to harm someone’s reputation or those that could create a “hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.” Id. at 23. Similarly, the model policy allows employers to admonish employees about posting information that they know to be untrue, as false statements will not be protected under the NLRA. See NLRB Memorandum OM 11-74 at 9 (Aug. 18, 2011)(discussing NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464, 471 (1953)). Conduct in violation of other laws, such as posting “tips” in violation of financial disclosure laws, may also be prohibited. See NLRB Memorandum OM 12-59 at 23 (May 30, 2012).
Language requiring employees to maintain the confidentiality of trade secrets and other internal processes and communications is permissible. Id. While employers cannot prohibit the use of all intellectual property, such as identifying trademarks or logos, they do have the right to prevent employees from disclosing proprietary information learned in the scope of employment. SeeNLRB Memorandum OM 12-31 at 17 (Jan. 24, 2012).
The NLRB’s model also prohibits employees from retaliating against co-workers who report a possible deviation from the policy or cooperate with an investigation, and allows for possible disciplinary consequences. See NLRB Memorandum OM 12-59 at 23 (May 30, 2012). It is important to note that even where an employer’s social media policy violates Section 7, discharging or disciplining an employee under an overbroad policy will not create liability for the employer “if it can establish that the employee’s conduct actually interfered with the employee’s own work or that of other employees or otherwise actually interfered with the employer’s operations, and that the interference, rather than the violation of the rule, was the reason for the discipline.” The Continental Group, 357 N.L.R.B. No. 39, at *18 (Aug. 11, 2011). Unlawful social media policies will not serve as a shield for employees who act in a way that violates company policy or the normal rules of the workplace.
The NLRB’s current model contains language prohibiting social media use on company time or equipment and allows employers to prohibit employees from using company email addresses to register on social media or other online tools. See NLRB Memorandum OM 12-59 at 23 (May 30, 2012). This model language likely will have to be changed in light of Purple Communications, because employers no longer may prevent their employees from using company email systems for Section 7 activity. Purple Commc’ns, Inc., 361 N.L.R.B. No. 126, 2014 NLRB LEXIS 952, at *18 (Dec. 11, 2014). Social media is a prime area for protected activity, and although Purple Communications does not explicitly authorize employees to use company email addresses to sign up for social media, it implies that company email may be used to facilitate any Section 7 activities absent a reasonable restriction.
Ongoing disputes concerning the appropriate content of social media policies
The NLRB’s model policy contains a provision allowing employers to prohibit employees from representing themselves as spokespersons for their employers. See NLRB Memorandum OM 12-59 at 23 (May 30, 2012). The provision includes a statement that “it is best to include a disclaimer” where the employer is the subject of a social media post. Id. Such a disclaimer could include the following model language: “The postings on this site are my own and do not necessarily reflect the views of [Employer].” Id. The model policy also permits employers to prohibit employees from speaking to the media on their employer’s behalf without the employer’s permission. Id. at 24. This is not to be confused with speaking to the media about employment generally, which employees have the right to do on their own behalf under Section 7. See, e.g.,Valley Hosp. Med. Ctr., 351 N.L.R.B. 1250, 1252 (2007).
In a case currently pending before the NLRB, an administrative law judge (“ALJ”) declined to follow NLRB Memorandum OM 12-59 (May 30, 2012) and the accompanying model policy allowing employers to require a disclaimer from employees posting on social media. Kroger Co., No. 7-CA-98566, 2014 NLRB LEXIS 279, at *12 ll. 30-37 (Apr. 22, 2014). (The documents submitted thus far in the pending case are available at: http://www.nlrb.gov/case/07-CA-098566). The ALJ reviewing a charge against the Kroger Company’s social media policy considered such a disclaimer to be a broad and burdensome requirement with no legitimate justification in the absence of similar limits on traditional written and oral expressions. Id. at *11 ll. 22-31. Requiring employees to include a disclaimer whenever the employer is mentioned on social media, according to the opinion, would have a tendency to chill legitimate Section 7 protected activity. Id.at *11 ll. 39-44. The ALJ dismissed the General Counsel’s opinion as “without precedential value” and as having weight “only to the extent that the reasoning is persuasive.” Id. at *12 ll. 30-34.
Until the NLRB comes to a decision on the matter, the model social media policy provision allowing disclaimers provides uncertain guidance. The recent Purple Communications decision suggests that the NLRB is giving less and less credence to the idea that a social media disclaimer is necessary to distinguish between an employer’s official position and an employee’s personal opinion. Purple Communications rejected the argument that employee use of company email would infringe employers’ First Amendment rights, as the NLRB was unconvinced that an email from an employee using the employer’s company email system “could reasonably be perceived as speech by, or speech endorsed by, the employer.” Purple Commc’ns, Inc., 361 N.L.R.B. No. 126, 2014 NLRB LEXIS 952, at *69 (Dec. 11, 2014).
Casting further doubt on the NLRB’s position on social media policies is the Supreme Court’s recent invalidation of three of President Obama’s appointments to the Board in NLRB v. Canning, 134 S. Ct. 2550 (2014). Changes in the leadership of the agency may prompt significant changes to the Board’s official position on social media policies and corresponding policy guidance. The NLRB is currently reevaluating past decisions in which the three members participated. See Statement of NLRB Chairman Mark Gaston Pearce on the Supreme Court’s Noel Canning Decision, NLRB.gov (June 26, 2014)(available at: http://www.nlrb.gov/news-outreach/news-story/statement-nlrb-chairman-mark-gaston-pearce-supreme-courts-noel-canning).