NLRB acting general counsel issues guidance on social media policies ... again

By Howard Rubin and Don Stait The Daily Record Newswire The good news is that the National Labor Relations Board's acting general counsel has issued guidance that provides employers clear advice relating to the rapidly evolving area of social media. The bad news is that the guidance documents reflect only the acting general counsel's opinion. While adopting a policy similar to the one approved by the acting general counsel may reduce the risk that the NLRB would pursue an unfair labor practice charge against an employer, it is important to recognize that the acting general counsel's opinions and advice memoranda are not binding to the NLRB or any court. That said, the acting general counsel's guidance, which was published in the form of an operations management memorandum and was accompanied by an advice memorandum, articulates the acting general counsel's reasoning and sets out, for the first time, a model social media policy that is acceptable in its entirety. This guidance is especially useful for employers because the acting general counsel's two previous advice memoranda focused almost exclusively on social media policy provisions that, according to the acting general counsel, violated the NLRA. The previous guidance left open whether any social media policy could ever be found lawful in the eyes of the acting general counsel. In addition to the approved policy, the documents provide additional useful guidance by discussing six other social media policies and identifying whether the acting general counsel found them lawful or unlawful. The model policy does not chill the exercise of protected activities In his earlier guidance materials, the acting general counsel considered policies to be unlawful where they "reasonably tend to chill employees in the exercise of (protected activities)." By contrast, the acting general counsel found that the model policy would not have an unlawful chilling effect because it contains examples of clearly illegal or unprotected conduct that serve to dispel any ambiguity and prevent employees from reasonably construing the policy to prohibit protected activity. The model policy limits the scope of confidentiality Policies that require employees to maintain confidentiality have been found unlawfully overbroad because they could be read to prohibit employees from collectively discussing compensation or unsafe working conditions. By contrast, the approved policy limits the scope of confidentiality to "the employer's trade secrets and private and confidential information," and provides examples of what is included in trade secrets. The model policy clarifies what can be considered inappropriate A policy that simply prohibits "inappropriate postings" was found unlawful because it was too vague and could be misconstrued. The approved policy prohibits "inappropriate postings" when they include qualifying language that eliminates the potential for confusion. The model policy contains the following clarifying phrase about inappropriate postings: "that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct." The model policy clarifies politeness requirements According to the acting general counsel, exhortations for politeness, in isolation, could serve to chill protected activity, which often involves impolite content. However, the approved policy avoids that potential pitfall by explaining that being respectful, fair and courteous means not posting social media content that is: "malicious, obscene, threatening or intimidating; harassing or bullying; meant to intentionally harm someone's reputation; or could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy." Other policy provisions The acting general counsel did not specifically comment on other provisions in the approved policy, except to suggest that such policy language raises no issues under the NLRA. Some of the approved policy language, which is common in employers' social media policies, includes the following: "Carefully read these guidelines, the (employer) statement of ethics policy, the (employer) information policy and the discrimination and harassment prevention policy, and ensure your postings are consistent with these policies. "Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly ... Never post any information or rumors that you know to be false about (the employer), fellow associates, members, customers, suppliers, people working on behalf of (the employer) or competitors. "Never represent yourself as a spokesperson for (the employer). If (the employer) is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of (the employer), fellow associates, members, customers, suppliers or people working on behalf of (the employer). If you do publish a blog or post online related to the work you do or subjects associated with (the employer), make it clear that you are not speaking on behalf of (the employer). It is best to include a disclaimer such as 'The postings on this site are my own and do not necessarily reflect the views of (the employer).' " Policies do not need disclaimers Finally, it is important to note that nowhere in the approved policy is there any language included to state that nothing in the policy is intended to infringe upon employees' exercise of their rights under the NLRA. Many social media policies contain such language, and the acting general counsel's guidance makes it clear that a policy can be lawful without it. For more information, visit www.nlrb.gov. ---------- Howard Rubin is a shareholder in Littler Mendelson's Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson's Portland office. Contact him at 503-221-0309 or dstait@littler.com. Published: Thu, Jul 12, 2012