On May 30, 2012, NLRB Acting General Counsel Lafe Solomon issued an additional report discussing several corporate social media policies alleged to violate the NLRA. In Solomon’s third report on social media issues in the last year, he continued to take an aggressive look at employers’ social media policies, finding that various company rules and policies are allegedly overbroad under the NLRA. Solomon is very interested in this issue, having identified it as a “hot topic” to employers, the media, and the public.
In the social media context, Solomon again restated the NLRB’s two-step approach for looking at employer work rules to determine if employees reasonably could understand that the rules impermissibly prohibit protected activity. According to Solomon’s report, under the first step of this inquiry, the NLRB asks whether a rule “explicitly restricts Section 7 protected activities.” If a work rule does not explicitly prohibit Section 7 activities, then Solomon indicated that the NLRB will look to see if “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”
Several of the allegedly unlawful specific policies addressed by Solomon’s latest report include:
- A confidentiality rule that warned employees about sharing confidential information, without specifically identifying categories of non-NLRA protected confidential information.
- A warning that employees’ online posts should be “completely accurate and not misleading.”
- A policy that instructed employees to communicate in a “professional tone” without making “objectionable or inflammatory comments.”
- A restriction on employee contact with the media.
Given the NLRB’s continued focus on this issue, any employer with a social media policy should take a close look at Solomon’s reports and weigh carefully the risks and benefits of such a policy. Even for employers without a union-represented employee population, close consultation with labor counsel regarding policy language is advised.