US Labor Board: Some Limits on Employee Social Media Use Are Illegal

It is illegal for U.S. employers to issue broad-based prohibitions of employee discussions about their workplaces on social media, according to a new memo from the acting general counsel of the U.S. National Labor Relations Board (NLRB).

General Counsel Lafe Solomon, in a May 30 memo, examined social media policies at seven employers, including General Motors and Target Brands, and found six of the polices overly broad.

Solomon, in his third social-media memo since August, found that the six policies have provisions that violate Section 7 of the National Labor Relations Act, which allows employees to join labor unions and to discuss working conditions with each other. Solomon's opinions say employers cannot prohibit employees from discussing working conditions, including salary, with coworkers on social media.

Some social media restrictions are legal, but several others in the example policies were not, Solomon wrote. A policy prohibiting employees from releasing "confidential guest, team member and company information" on social media was overly broad because it could be interpreted to mean that employees can't discuss the employment conditions of coworkers, he wrote. A prohibition on discussing confidential information in public was illegal for the same reason, he wrote.

Another policy's advice that employees should "think carefully" about friending coworkers on social networking sites discourages discussions of work conditions on those sites, Solomon wrote. A prohibition on employees posting workplace photos and video or the company logo was also overly broad and could include a ban on photos and video of picket lines with signs containing the logo, he wrote.

Although Section 7 addresses labor unions in part, the law applies to all U.S. employers, not just unionized ones. The series of memos appear to serve notice to U.S. companies that the Section 7 rules exist, said Marcia Goodman, a partner specializing in employment law with the Mayer Brown law firm in Chicago.

"I think that the NLRB was trying to add to their own relevance, because most people -- most employers even -- think of the NLRB as it only matters if you have a union," she said. "Fewer and fewer companies have unions, and therefore, they feel a little ignored and dusty."

Employers have asked for guidance on social media policies, said Nancy Cleeland, director of public affairs for the NLRB.

Companies should examine the three general counsel memos on social media and "act accordingly," Cleeland said in an email. In the latest memo, Solomon includes the social-media policy of Wal-Mart Stores, which he finds legal.

The labor relations act dates back to 1935, and the new series of memos are designed to give assistance to employers as they encounter social-networking employees, Cleeland said.

"We can't provide legal advice, but we can show what we have found to be acceptable and unacceptable, and explain why," she added. "We're applying a 77-year-old law to forms of communication that didn't exist when it was written."

In Solomon's two previous memos, he focused on recent cases in which companies fired employees for using social media to discuss working conditions. The agency has attempted to highlight a large number of cases with a "variety of scenarios," Cleeland said.

The NLRB can order companies it has found to be in violation of the labor act to rehire fired employees or pay for lost wages. The board can also order companies to change their social media policies, Cleeland said.

In the May 30 memo, Solomon found that a company's prohibition on employees commenting on legal issues was illegal because it could restrict workers from commenting on employment claims. A policy requiring workers to adopt a "friendly tone" online, to avoid picking fights and avoid inflammatory topics was also a violation of the labor law because discussions about working conditions "have the potential to be just as heated or controversial as discussion about politics or religion," Solomon wrote.

However, Solomon found a Wal-Mart provision focused on obscenity and harassment to be legal. That policy encouraged employees to avoid posting information that "could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying."

One of the messages of the latest NLRB memo is to avoid ambiguous language in social media policies and spell out situations to avoid, said Mayer Brown's Goodman. Companies should give "concrete examples" of social media activity that is allowed and prohibited, she said.

The new memo leaves questions about how companies can prohibit employees from releasing confidential information on social-networking sites, she said. The memo acknowledges that companies have the right to protect "certain" confidential information, but doesn't spell out what that is, she added.

The NLRB seems to be on a "journey" to address social media in the workplace, Goodman said. The three memos, which don't lay out specific rules, may be confusing to many companies, she added.

"They could just tell you the rules, but that would be too easy," she said. "They make you figure them out yourself."

Barry Bendes, a partner at the Edwards Wildman law firm, disagreed, saying the newest memo gives good examples of what companies should and should not do.

"What they're doing is giving employers guidance in an area where it was needed," he said. "Without the guidance you had no idea whether some of the provisions in your policy would be found to be unlawful."

The NLRB is telling employers to be careful about how they restrict employee social media use, both during and away from work, Bendes said. Many U.S. companies don't have social media policies, but it's "only fair" to develop them to give employees guidance, he added.

"What [the NLRB is] really saying is, 'don't be ambiguous, don't speak in broad terms, don't require clearance for things that are already lawful,'" he said.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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