As we noted in our August 25, 2011 Update, the National Labor Relations Board (“NLRB”) is closely scrutinizing employer social media policies in cases before it to see if such policies unlawfully restrict employees’ exercise of rights protected by Section 7 of the National Labor Relations Act (“the Act”). Both unionized and union-free employers are impacted by the NLRB’s actions in this regard.

Under Section 7 of the Act, employees have the right to engage in concerted activity concerning issues that affect or relate to their terms and conditions of employment. Social media policies violate the Act if such would “reasonably tend to chill employees in the exercise of their rights” under the Act, including the right to engage in protected concerted activity. Thus, a social media policy that explicitly restricts these rights (for example, by forbidding employees from discussing their wages or other benefits with other employees) would violate the Act. Similarly, social media policies will be found to be unlawful if it is determined that (a) an employee would reasonably construe the language of the policy to prohibit protected concerted activity;(b) the rule was promulgated in response to protected concerted activity; or (c) the rule was applied in such a manner as to restrict protected concerted activity.

Obviously, whether a social media policy violates the Act is a very fact-specific determination and will depend upon the exact language used in the policy. In August 2011 and January 2012, the NLRB’s actinggeneral counsel issued reports summarizing Advice Memoranda in cases involving social media. While Advice Memoranda do not have the force of law, they provide a view as to how the NLRB’s generalcounsel analyzes social media issues under the Act.

In a further effort to clarify his position, the acting general counsel on May 30, 2012 issued a third report on social media issues. In the report, the acting general counsel discussed six recent cases in which he found that employer social media policies were overly broad, and thus unlawful under the Act since the policies did or reasonably could restrict employees’ exercise of Section 7 rights. Examples of policies found to violate the Act include:

• a policy restricting the release of confidential guest, employee or company information, since it did not make clear that employees have the right to discuss their wages and benefits;
• a policy prohibiting offensive, demeaning, abusive or inappropriate remarks, since the policy could be interpreted to proscribe protected communications about an employer’s labor policies or treatment of employees;
• a prohibition on commenting on any legal matters involving the employer (including pending litigation), since this could restrict employees from discussing potential claims they may have against the employer;
• a policy requiring employees to notify management of any unsolicited or inappropriate electronic communications received from fellow employees or outsiders, since such a rule would restrict an employee’s right to communicate with fellow employees or an outside entity such as a union about their terms and conditions of employment.

Given the scrutiny of social media policies by the NLRB, employers should review with counsel their existing policies, and consult with counsel before drafting a new policy or disciplining employees for violations of social media policies.