The National Labour Relations Board (NLRB) has reversed the decision of an administrative law judge (ALJ) and held lawful an employer’s social media policy prohibiting disparagement of the company and others, “inappropriate communications,” disclosing confidential information, posting photos of coworkers, or using the company logo to denigrate people or causes. Medic Ambulance Service, 370 NLRB No. 65 (Jan. 4, 2021).
The employer’s social media guidelines expressly ban “inappropriate communications, even if made on your own time using your own resources.” The ALJ found that the policy unlawfully restricted employee rights under the National Labour Relations Act (NLRA) to criticize their terms and conditions of employment.
The NLRB disagreed with the ALJ. It held that the employer’s prohibitions, when read in the context of the guidelines, were lawful.
The NLRB ruled the following provisions are lawful:
- “Do not disclose confidential or proprietary information regarding the company or your coworkers.” The NLRB found this provision did not unlawfully restrict employees’ right to share information about coworkers, because this language was followed by “express prohibitions limited to the use of copyrighted or trademarked company information, trade secrets, or other company information.” Moreover, these concerns were not outweighed by the company’s interest in protecting patient and customer privacy, the NLRB said.
- A prohibition on use of the company name to endorse, denigrate, or otherwise comment on a person, product, cause, or opinion. The NLRB held that the context of the policy makes clear the concern is with employees appearing to speak on the company’s behalf. Social media policies should be written to make the distinction between employees speaking for the company rather than for themselves quite clear, as overly restricting an employee’s right to be critical on their own social media would be unlawful interference with employee Section 7 rights under the NLRA.
- A ban on using photos of coworkers without their express consent. Because this policy was couched as respect for the privacy and dignity of coworkers, the NLRB read the policy in that context and found it lawful.
- A policy prohibiting sharing employee compensation information. Although banning employee discussion of their compensation has long been unlawful, this policy, read in context, was not a violation of the NLRA, the NLRB said. The provision emphasizes the importance of protecting the company’s confidential information, and that all telephone calls from outside regarding current or former employees be forwarded to supervisors. The NLRB read this as a limited restriction, protecting confidential company information, and reflecting the limitation on who can speak for the company. It saw this as not restricting employees from discussing it among themselves or with a union. Guidelines should be drafted to highlight the intent of the rules to protect legitimate company interests and give specific context where possible, but strict prohibitions on discussing wages generally continues to be problematic.
- Prohibition on using social media to disparage the company or others. The NLRB noted that, although this rule potentially may interfere with employee rights, it is lawful because, on balance, companies have a compelling interest in “being able to depend on the loyalty of their employees.” This is consistent with the NLRB’s decision in Motor City Pawn Brokers, 369 NLRB No. 132 (July 24, 2020).
The NLRB relied on Boeing Co., 365 NLRB No. 154 (Dec. 15, 2017), balancing the “nature and extent of the potential impact on NLRA rights” with the “legitimate justifications associated with the rule,” evaluated from the perspective of a reasonable employee to determine the potential for infringement on employee rights.
Social media policies must be crafted to be readily understood by a reasonable employee to address legitimate company interests and not to interfere with employee rights. Employers should partner with counsel to develop social media policies.
Under President Joe Biden, NLRB decisions restricting an employer’s ability to promulgate policies that potentially restrict Section 7 rights are likely to return eventually. However, for now, an employer’s rights to create policies continues to be clarified in the favor of protecting the employer’s business interests.
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