Employers and their legal counsel have expressed a sense of confusion over the National Labor Relations Board's ever-evolving position on social media policies. In a number of recent cases, the NLRB has declared various parts of corporate policies that govern employee use of Facebook and other social media to violate Section 8(a)(1) of the National Labor Relations Act, because they appear to limit employees' use of these sites to engage in protected concerted activity.
Most employers never intended the social media policies to apply to such conduct, but unions attempting to organize certain companies and employees disciplined for violation of these policies have prevailed in NLRB unfair labor practice claims based on potential application of the specific language of the social media policy to employee criticisms of employers and work practices. The NLRB decisions appeared to lack common principles for determining the validity of restrictions, and instead used a case-by-case approach that made it difficult for employers to understand what such policies can actually contain.
In an attempt to address these concerns, the NLRB's General Counsel released three reports characterizing recent Board decisions on social media policies, and noted common areas of concern. The last of these reports was issued on May 30, and contains useful guidance for employers attempting to match their policies to NLRB expectations. The report analyzes six decisions where the NLRB found various corporate social media policies to violate Section 8(a)(1), and more importantly, discusses a decision upholding Wal-Mart's policy as compliant with the NLRA.
The rejected policies failed NLRB scrutiny for a variety of reasons. Target's and GM's policies prohibited discussion of any company confidential information, which the Board found to potentially include terms and conditions of employment. Another policy prohibited social media use that contained objectionable or inflammatory comments. The NLRB found this language to potentially chill protected discussion of working conditions or unions.
The Wal-Mart policy passed NLRB muster. The report attaches a copy of the Wal-Mart policy, signaling the NLRB's recommendation that it be used as a model for other employers. This policy carefully distinguishes between permitted concerted activity, and prohibited harassment, discrimination and bullying behavior. While some employers may find it to be an insufficient protection of their corporate image and expectations of employees, it may serve as a "safe harbor" against unfair labor practice charges.
The report including the Wal-Mart policy can be found here.