Alert: Why Employers Should Include Limiting Language in Social Media Policies

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October 14, 2011

Section 7 of the National Labor Relations Act (NLRA) provides that employees have the rights to engage in, form, join or assist labor unions as well as “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  See 29 U.S.C. § 157.  Section 7 applies to both unionized and non-unionized employers, and among other things, it generally allows employees to discuss the terms and conditions of their employment with one another.

Over the past year, the National Labor Relations Board (NLRB) has aggressively enforced employees’ rights under Section 7 in the context of social media, such as Facebook, Twitter, or LinkedIn.  The NLRB also has focused on employers’ social media policies, which may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”

In August of 2011, the general counsel of the NLRB released a report addressing the issue of Section 7 rights in the context of social media.  The report describes the general counsel’s position with respect to 14 cases involving activities that are arguably protected under Section 7 and policies that are arguably overbroad under Section 7.  One of the primary takeaways from the report is that the best way for an employer to ensure that its social media policy will not be considered to be overbroad and, therefore, in violation of Section 7, is to include limiting language in the policy to clarify that Section 7 activities are not prohibited.

In the report, the general counsel stated that the NLRB considers the following types of policies overbroad under Section 7:

  • A policy that prohibited employees from posting pictures of themselves in any media, including the Internet, which depict the company in any way, including a company uniform, corporate logo, or company vehicle; 
  • A policy that prohibited employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors; and 
  • A policy that prohibited employees from using the company name, address, or other information on their personal profiles.

The report also stated that the following types of policies were overbroad because they did not contain limiting language to remove potential ambiguities regarding whether Section 7 activity is prohibited:

  • A policy that prohibited “offensive conduct” and “rude and discourteous behavior;” 
  • A policy that prohibited “inappropriate discussions” about the company, management and/or coworkers; 
  • A policy that prohibited “any communication or post that constitutes embarrassment, harassment or defamation of the [employer] or of any . . . employee, officer, board member, representative, or staff member [of the employer];” 
  • A policy that prohibited “statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees;” 
  • A policy that prohibited employees from “talk[ing] about company business on their personal accounts . . ., posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy . . . disclosing inappropriate or sensitive information about the employer . . . [or] posting any pictures or comments involving the company or its employees that could be construed as inappropriate."

In addition, the report stated that a policy that prohibited “using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity” was overbroad because the policy “provided no definition or guidance as to what the employer considered to be private or confidential.”

Given the broad scope of the types of policies that the NLRB considers to be overbroad under Section 7, the best way for employers to reduce their potential liability is to include some limiting language in their social media policies to clarify that Section 7 activities are not prohibited.  By including limiting language in a social media policy, an employer should be able to reduce the risk that the NLRB will find that its policy is unlawfully overbroad under Section 7.

For more information, contact your Briggs and Morgan attorney or a member of the Employment, Benefits and Labor section, ranked as a Minnesota Band 1 practice in Chambers USA.  For other up-to-date information on employment law issues, please visit Briggs and Morgan’s employment law blog, Minnesota Employer.