NLRB Weighs in on Social Media Issues in Report

     (CN) – Employers may not instruct their employees to think twice before “friending” co-workers or prohibit them from discussing their job on Facebook and other social media websites, according to the National Labor Relations Board.
     Lafe Solomon, Acting General Counsel of the National Labor Relations Board (NLRB), issued a report addressing recent issues regarding employers’ policies and rules about employee use of social media, including Facebook, Twitter, YouTube and others. The report focused on the NLRB’s decisions in seven recent cases.
     The NLRB found that a “provision of the employer’s social media policy instructing employees to ‘[t]hink carefully about ‘friending’ co-workers’ is unlawfully overbroad because it would discourage communications among co-workers.”
     “We also found unlawful the policy’s instruction that employees ‘[r]eport any unusual or inappropriate internal social media activity.’ An employer violates the [National Labor Relations] Act by encouraging employees to report to management the union activities or other employees. Here, the employer’s instruction would reasonably be construed by employees as applying to its social media policy,” the report continued.
     In addition, any policy that prohibits employees from posting photos, music, videos, quotes or personal information of others without obtaining the owner’s permission – including employer logos and trademarks – is unlawful, according to the NLRB.
     “Although the employer has a proprietary interest in its trademarks, including its logo if trademarked, we found that employees’ non-commercial use of the employer’s logo or trademarks … would not infringe on that interest,” the report said.
     One employer’s policy under the NLRB’s review instructed employees to “adopt a friendly tone when engaging online. Don’t pick fights. Remember to communicate in a professional tone. This includes proper consideration of privacy and topics that may be considered objectionable or inflammatory – such as politics and religion.”
     The NLRB found this rule unlawful for several reasons: “in warning employees not to ‘pick fights’ and to avoid topics that might be considered objectionable or inflammatory – such as politics and religion, and reminding employees to communicate in a ‘professional tone,’ the overall thrust of this rule is to caution employees against online discussions that could become heated or controversial.
     “Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion. Without further clarification of what is ‘objectionable or inflammatory,’ employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism,” the report said.
     Similarly, an employer may not prohibit employees from making “disparaging or defamatory” comments, because such comments might include criticism of the employer’s treatment of its employees, the NLRB found.
     One employer’s rules about social media stated, “If you’re about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it.”
     The NLRB found nothing wrong with this statement, nor with a similar rule in another policy that told employees to “develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information.”
     These rules “merely advise employees to be cautious… and do not proscribe any particular communications,” the NLRB found.Employers may also prohibit their employees from harassing co-workers online. A provision that “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours from home and on home computers,” is a reasonable regulation of employees’ speech, the NLRB said.

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