NLRB Releases New Advice Memo on Social Media Policies

September 23, 2019

Addressing whether certain provisions of the employer’s Social Media Policy violate the National Labor Relations Act (NLRA), the National Labor Relations Board held that only policy provisions prohibiting employees from posting inaccurate or false information about the employer and requiring employees to keep confidential the employer’s policies and procedures violate the NLRA.

Conduct rules. The first provision is a form of on-duty conduct rule. The policy essentially prohibits "conduct that adversely affects your job performance, the performance of fellow associates, or otherwise adversely affects members, residents, owners, suppliers, people who work on behalf of [the company or its] legitimate business interests." On balance, the employer’s interests in maintaining discipline and production outweigh any chilling effect of this provision. Also, as an employer in the healthcare industry, the employer has an interest in avoiding unnecessary conflict that interferes with patient care.

Respect rules. The same was true for the "Be respectful" rule, which requires employees to always "be fair and courteous." The employer’s legitimate interests in civility and harmonious interactions are apparent from the text of the rule, which, among other things, instructs employees not to post statements that are "malicious, obscene, threatening or intimidating." Additionally, the rule provides examples of the types of posts that are prohibited, including "offensive posts meant to intentionally harm someone’s reputation" or "posts that could contribute to a hostile work environment" based on someone’s protected status.

Honest and accurate. On the other hand, certain provisions are unlawful Category 2 rules, including this provision: "Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that are false about Friendship Ridge, fellow employees, owners, residents, suppliers, people working on behalf of Friendship Ridge."

While employers may prohibit maliciously false statements, they may not prohibit and publish publication of only inaccurate or false statements. Requiring complete accuracy in speech can burden protected concerted activity, and the rule would likely cause some employees to refrain from speaking out due to uncertainty about whether their claims are completely accurate or fear of employer challenges. Because the employer’s policy is not tailored to target defamatory statements or intentional misrepresentations about it, the rule has a disproportionate impact on employees’ NLRA rights.

Confidentiality rules. Further, a provision that said, "maintain the confidentiality of Friendship Ridge private or confidential information. Do not post internal reports, policies, procedures or other internal business-related confidential communications," was an unlawful confidentiality rule. Certain types of confidentiality rules are lawful, like prohibiting employees from disclosing trade or business secrets, but a general prohibition on posting confidential information may be a Category 2 rule where employees would reasonably interpret it to include terms and conditions of employment, and the employer provided no business justification for the rule.

Representing employer online. Finally, rules that prohibit employees from speaking on behalf of the employer or attempting to represent it online are lawful Category 1 rules. The rule is not an absolute ban on discussing the employer online; the policy acknowledges that employees may choose to post online about the employer and provides certain instructions for doing so, such as utilizing a disclaimer. This would reasonably be interpreted to only restrict employees from speaking on behalf of the employer without permission when posting online. This limited restriction is supported by the employer’s strong interest in determining who is an authorized representative or spokesperson, and therefore is a lawful rule.

Finally, the disclaimer requirement, when viewed in the larger context of this rule, is lawful. The rule did not require that employees use specific words for the disclaimer, only that they make it clear when posting online that the statements are their own and not mistaken as an official statement from the employer. Any burden that the disclaimer requirement may have on Section 7 activity is outweighed by the employer’s significant interest in requiring that only authorized individuals speak for the company.