NLRB GC Approves A
Social Media Policy
In 3rd Guidance,
GC Notes Use of Examples,
Helps Give a Clear Message
In Advice Memorandum 11-CA-067171, issued May 30, 2012, the Acting General Counsel for the National Labor Relations Board once again visited social media. He scrutinized an employer’s policy and this time around found it to be acceptable, not “reasonably tending to chill Section 7 rights.”
In contrast with policies that vaguely prohibit “derogatory,” “rude,” or “critical” comments online, the employer’s policy provided that “being respectful, fair, and courteous means not posting social media content that is: (a) malicious, obscene, threatening or intimidating, (b) harassing or bullying, (c) meant to intentionally harm someone’s reputation, or (d) could contribute to a hostile environment on the basis of race, sex, disability, religion, or any other status protected by law or company policy.”
A posting provision that qualified “inappropriate postings” by defining them as including “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct” was sufficiently focused to qualify an otherwise ambiguous term.
The employer limited “confidentiality” to trade secrets and the design and production side of the business; “do not post internal reports, policies, procedures or other internal business-related confidential communications.” This restricted “confidentiality” to proprietary information such as products, processes, and know-how.
The acceptable social media policy had no savings clause (e.g., “this policy shall not be interpreted to infringe on an employee’s right to engage in protected concerted activity”) , and this reinforces the notion that to the General Counsel, such a set of guidelines can pass muster without the provision.
Note that the advice memorandum, putting aside this particular policy, did also point out some illegal provisions to avoid, e.g., urging employees to be careful about whom they friend on Facebook, and recommending that employees bypass social media sites as fora for work-related complaints.