The NLRB General Counsel’s office has released its third report on recent social media cases. The GC reviewed social media and confidentiality policies from several companies and found most policies unlawful. In particular, the GC found the following portions of various social media and confidentiality policies unlawful:
- “Don’t release confidential guest, team member or company information. . . .”
- “You must also be sure that your posts are completely accurate and not misleading”
- “When in doubt about whether the information you are considering sharing falls into one of the above categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea. Failure to stay within these guidelines may lead to disciplinary action.”
- “Respect proprietary information and content, confidentiality, and the brand, trademark and copyright rights of others. Always cite, and obtain permission, when quoting someone else. Make sure that any photos, music, video or other content you are sharing is legally sharable or that you have the owner’s permission. If you are unsure, you should not use.”
- “Get permission before posting photos, video, quotes or personal information of anyone other than you online.”
- “Do not incorporate [Employer] logos, trademarks or other assets in your posts.”
- “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.”
- “Think carefully about ‘friending’ co-workers . . . on external social media sites.”
- “Report any unusual or inappropriate internal social media activity to the system administrator.”
- “Adopt a friendly tone when engaging online. Don’t pick fights. Social media is about conversations. When engaging with others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversation. Remember to communicate in a professional tone. . . . This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion. Don’t make any comments about [Employer’s] customers, suppliers or competitors that might be considered defamatory.”
- “Employees are prohibited from posting information regarding [Employer] on any social networking sites (including, but not limited to, Yahoo finance, Google finance, Facebook, Twitter, LinkedIn, MySpace, LifeJournal and YouTube), in any personal or group blog, or in any online bulletin boards, chat rooms, forum, or blogs (collectively, ‘Personal Electronic Communications’), that could be deemed material nonpublic information or any information that is considered confidential or proprietary. Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans or schedules. Employees should avoid harming the image and integrity of the company . . .”
The Report contains an example of a policy that the GC found lawful. Aside from copying that policy verbatim, however, it is difficult to figure out how much guidance that policy provides. Many employers would probably contend that the GC’s “approved policy” is not sufficiently strong enough to protect employer rights in social media.
This report represents only what the GC’s office believes is unlawful, not the full NLRB, an Administrative Law Judge, or a federal appeals court. Yet, the GC’s opinion is important because that office has the power to issue complaints against employers. Furthermore, the GC’s office often attacks social media and confidentiality policies as infringing on the right of employees to engage in protected concerted activity, a right which applies in both union and non-union settings. As a result, both union and non-union employers must be aware of the GC’s position.
Most employers must either revamp their social media policies to conform to this new report, or be willing to take the risk that the GC could find their policy unlawful and bring a complaint.