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On May 30th, the Acting General Counsel of the National Labor Relations Board ("NLRB") issued a third report on social media with "specific examples of various employer policies and rules" that were deemed either lawful or unlawful in an effort to provide employers with "additional guidance." A copy of the report can be found here.
Although the report does provide "additional guidance" by way of examples of specific "unlawful" and "lawful" social media policy provisions, it says very little that is new in terms of how the NLRB views and will interpret social media policies. In fact, previous "guidance" issued by the NLRB Acting General Counsel on this subject in August 2011 and January 2012 are in many cases simply restated in the May 2012 report. What is new in the May 2012 report, however, is the inclusion of a policy that the NLRB concluded was lawful under the National Labor Relations Act ("NLRA"), and one page of reasons why the NLRB reached the conclusions that it did about that policy.
Generally speaking, the following social media policy provisions included either undefined phrases (such as "non-public information" or "confidential") or had an over-reaching feel. All of them (according to the NLRB) could be interpreted by employees to mean that they could not talk about the terms and conditions of their employment or that of their co-workers (a prohibited act under the NLRA). Some of the policy language that the NLRB concluded was overbroad and unlawful under the NLRA include:
The NLRB concluded that the following provisions were unlawful, due to the fact that they "proscribe[ ] a broad spectrum of communications that would include protected criticisms of the Employers' labor policies or treatment of employees":
Frustratingly, the NRLB did not back down from its conclusion in its January 2012 report that employee non-commercial use of an employer's logo or trademarks while engaging in NLRA-protected activities is not unlawful. As noted in the May 2012 report, "[a]lthough the Employer has a proprietary interest in its trademarks, including its logo if trademarked . . .employees' non-commercial use of the Employer's logo or trademarks while engaging in Section 7 activities would not infringe on that interest." Thus, and contrary to widely accepted and longstanding trademark infringement law, the NLRB believes that employees can use employer-trademarked logos and other company identifiers as they see fit, and without consequence.
Similarly, the NLRB continues to refuse to acknowledge or give weight to disclaimers (or "savings clauses") in social media policies that state something to the effect of, "Nothing in this policy is intended to interfere with employees' rights under the NLRA, and any conflicts between this policy and applicable law will be decided in favor of the law." Such language, according to the May 2012 report, "does not cure the ambiguities in the policy's overbroad rules."
Although the NLRB's latest report and the statements therein are not law, per se, the report is yet another example of how the current NLRB will analyze any social media policy that comes its way. To date, however, no court has yet had the opportunity to consider whether the NLRB's interpretations of the NLRA in conjunction with employers' social media policies are consistent or contrary to federal labor law.
With respect to the sample "lawful" social media policy provided in the report, employers should be mindful of a couple of points before they cut-and-paste it into their employee handbooks: (1) It reflects a liberal interpretation of the NLRA; (2) It may not be appropriate for all employers; and (3) It does not include some helpful social media policy provisions that have been upheld in NLRB proceedings before administrative law judges.
The sample policy, however, like the NLRB report, does provide employers with some new guidance about how to craft and update social media policies. If they have not done so in the last six months, employers should consider reviewing their social media policies to ensure continuing compliance with the NLRA and other employment laws. Such policies, however, should also be reviewed to ensure that the employer's lawful objectives behind such policies are not watered down by the spate of NLRB "guidance" issued in the last 6-10 months. Employers who have not yet implemented social media policies should consult with counsel about the advisability of doing so.
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