Social Media Policies and the NLRB’s May 30, 2012 Report

The NLRB’s Office of General Counsel issued on May 30, 2012, Memorandum OM 12-59; yet another memo on Social Media Policies adopted by employers. This report criticizes seven new policies and follows up on the August 2011 and January 2012 reports.

Unfortunately for employers, the latest report identifies what such policies can not say, rather than giving clear guidance to what a policy can contain in compliance with the National Labor Relations Act. Prudent employers need to once again review their social media policies with employment counsel to see if the policy remains in compliance.

 “Social media policies” include policies that cover such topics as the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government agencies. Because the definition of “social media policies” is so broad, prudent employers may also need to review not just the social media policy but the entire employee handbook and many confidential information policies.

An employer violates Section 8(a)(1) of the NLRA through the maintenance of a work rule if that rule “would reasonably tend to chill employees in the exercise of their Section 7 rights.”  If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

For example, the following employee handbook section on confidential information was found to be overbroad and in violation of this three part test: “The provisions instructing employees not to share confidential information with coworkers unless they need the information to do their job, and not to have discussions regarding confidential information in the break room, at home, or in open areas and public places are overbroad.”