The Third Time Is a Charm: NLRB Acting General Counsel Issues Third Memorandum on Social Media Issues

Social media communications continue to be a hot topic for the National Labor Relations Board (NLRB), employees and employers. On May 30, 2012, the Acting General Counsel (AGC) of the NLRB issued his third report in less than a year on the topic, discussing seven recent cases handled by the agency and providing an example of a revised policy that the AGC considered "lawful."

Section 7 of the National Labor Relations Act (NLRA) provides that all workers—and not just workers in labor unions—may engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Generally, two or more employees acting together to address a collective employee concern about terms and conditions of employment is considered protected concerted activity. A single employee acting on behalf of others, or who is initiating, inducing or preparing for group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity. On the other hand, comments made solely by and on behalf of the employee himself or herself that are related to his or her employment but do not arise out of, or call for, concerted activity by other employees, are not concerted.

In his latest report, the NLRB's AGC counsels: "[R]ules that are ambiguous as to their application to Section 7 activity and that contain no limiting language or context to clarify that the rules do not restrict Section 7 rights are unlawful. In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful." In short, including specific examples of prohibited conduct in a social media policy goes a long way toward having a policy that the NLRB may find lawful.

The AGC's most recent memorandum includes a copy of Walmart's revised social media policy, which the NLRB deemed lawful. In reviewing Walmart's policy, the AGC noted:

• Walmart's prohibition on social media postings that may include "discriminatory remarks, harassment and threats of violence" is lawful because it is focused on "plainly egregious conduct" and there was no evidence that such a prohibition has been used to hinder Section 7 activity.
• Walmart's policy to be respectful and "fair and courteous" in social media postings could be overly broad under certain circumstances, but is not because the policy provides examples of plainly egregious conduct so employees would not reasonably construe the policy to prohibit Section 7 conduct (e.g., the policy instructs employees to avoid posts that "could be viewed as malicious, obscene, threatening or intimidating"; examples include "offensive posts meant to intentionally harm someone's reputation or posts that could contribute to a hostile work environment on the basis of" a protected status).
• Walmart's policy of requiring employees to maintain the confidentiality of its trade secrets and private and confidential is lawful because it contains examples of prohibited disclosures for employees to understand that it does not include protected communications about working conditions.

The NLRB takes the position that an employer's social media policies should contain a clear discussion of what constitutes the prohibited behavior so that employees know that protected concerted activities are not included in the policy's scope. Although employers can still discipline or terminate an employee for work-related posts that do not discuss employees' terms or conditions of employment (for example, posts about disagreements with co-workers over personal issues), employers should review all potential disciplinary actions that are based on social media postings to ensure that the offending posts do not implicate an employee's right to engage in protected concerted activities.

Employers should review their policies to determine if they run afoul of the NLRA. But one size does not fit all. A social media policy used by a large retailer like Walmart may not be applicable to a medical device company or a manufacturing facility or a restaurant chain.

If you have any questions about the NLRB's views on social media policies, or any other labor matters, please contact any of Faegre Baker Daniels' labor lawyers.