The Acting General Counsel of the NLRB has issued today an “updated” report on social media cases.   As we have reported frequently here, the NLRB has taken action against employers who clamp down on employee use of social media that may implicate the National Labor Relations Act.  At times, the NLRB has struggled with this issue, and when employee discipline is involved each case is evaluated on its facts.  

The Acting General Counsel’s OM 12_59 Report of the Acting General Counsel Concerning Social Media Cases.pdf does not concern discipline of an employee for using social media in a certain manner.  Rather, the updated report evaluates policies implemented by employers to govern social media usage.  The Memorandum details seven policies evaluated for lawfulness by the Acting General Counsel since January 2012.  The Acting GC finds violations of the Act in six of the seven policies, a whopping 85.7% violation rate, suggesting that the vast majority of employers in the United States maintain policies that would currently be considered unlawful.  It is not terribly surprising given the analysis applied.  

What is surprising, and surprisingly useful, however, is that in the seventh case the Acting General Counsel found the entire policy to be lawful, and reprinted the whole policy.  So, we finally have some definitive guidance on what is lawful in this area.

The Violations- Not Terribly Surprising

The Memorandum first deals with aspects of the first six policies the Acting GC considers to be unlawful.  The Board, of course, has summarily concluded that employees would interpret certain policies to inhibit their rights and so none of the examples give us much in the way of guidance.  Leaving aside for a moment that there is no proof any employee has ever so interpreted (let alone even actually read) such a policy, employers should be mindful of the phrases commonly found in handbook policies that the Board will target as unlawful.  Here are a few of the examples set forth in the Memorandum:

  • Policy:  “Don’t release confidential guest, team member or company information. . .”  Acting GC:  “we found this section of the handbook to be unlawful.  Its instruction that employees not ‘release confidential guest, team member or company information’ would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment. . . ”  
  • Policy: “If you engage in a discussion related to [Employer], in addition to disclosing that you work for [Employer] and that your views are personal, you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site”  Acting GC:  The underlined portion is “overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees that would be protected by the Act so long as they are not maliciously false.” 
  • Policy:  “Offensive, demeaning, abusive of inappropriate remarks are as out of place online as they are offline. . .”  Acting GC:  “[W]e found unlawful the instruction that ‘[o]ffensive, demeaning, abusive or inappropriate remarks” are prohibited as this provision proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.” 
  • Policy:  “Respect all copyright and other intellectual property laws.  For [Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [Employer’s] own copyrights, trademarks and brands.  Get permission before reusing others’ content or images.”   Acting GC:  The underlined portion “is unlawful, as it would interfere with employee’s protected right to take and post photos of, for instance, employees on a picket line, or employees working in unsafe conditions.”

Savings Clause Does Not Remedy Policy – Something Puzzling 

The Acting GC’s Memorandum specifically addresses an employer’s attempt to separate its written policies from the Act.  According to the Acting GC, such a statement is not sufficient to cure deficiencies in the language of the policies.  Thus, the employer inserted into its policy a “savings clause:  “[This] Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act).”  The Acting GC, however, had a different view:  This “does not cure the ambiguities in the policy’s overbroad rules.”  This is, of course, quite puzzling.  In page after page detailing violations of policies, the Acting GC reads into the minds of employees explicit connection between a written policy and Section 7 activity.  So why isn’t an employer’s express statement that the Act is not implicated sufficient?  Is the NLRB concluding the employees would only read the alleged offensive language and not the savings clause? If employees can reasonably be expected to have read the entire policy, then why doesn’t an explicit reference to the NLRA give enough information for further investigation? These questions are a few of the mysteries spawned by the agency.

A Lawful Policy – Somewhat Useful

Finally, towards the end of the 24 page Memorandum, the GC deals with the seventh policy which he found to be entirely lawful.  The Memorandum helpfully sets forth the whole policy.  In his conclusion that the policy is lawful, the Acting GC set forth the principles he relied upon:

As explained above, rules that are ambiguous as to their application to Section 7 activity [excluding savings clauses, of course] 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 be reasonably construed to cover protected activity, are not unlawful.

Among the examples of prohibited conduct considered to be “clearly illegal” or “unprotected” include:

  • “[A]void using statements….that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.  Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability relation or any other status protected by law or a company policy.”
  • “Maintain the confidentiality of [Employer] trade secrets and private or confidential information.  Trades (sic) secrets may include information regarding the development of systems, processes, products, know-how and technology.  Do not post internal reports, policies, procedures or other internal business-related confidential communications.”

One can imagine many employers will just adopt the policy set forth in the Memorandum as this is truly the first time such a lawful policy has been published and pre-vetted by the NLRB.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.