|June 8, 2012|
Previously published on June 6, 2012
When the NLRB General Counsel, Lafe Solomon, issued his third report on social media policies on May 30, 2012, I assumed that it would be in line with the gray doom and gloom of the previous two reports which basically left employers with a faint roadmap of “what not to do” with respect to social media policies. For the most part, my assumption was correct.
Yes, the General Counsel again relied on Board caselaw which holds that company rules and policy statements are unlawful where employees could reasonably interpret them as limiting their rights under the Act. And yes, similar to the previous 28 cases that he reviewed, he found another six policies to be overbroad and therefore, unlawful. However, this time, he identified one policy to be lawful in its entirety. BUT there is the silver lining...until now we have not had a solid example of a what the General Counsel would consider to be a “lawful” social media policy.
The General Counsel’s approval of the policy is so strong that he attached a copy of the two-page policy to the report. His opinion is not binding law. However, his report is issued as an operations memorandum to all NLRB regional directors and officers. It is also the General Counsel’s office that ultimately decides which unfair labor practice charges warrant the issuance of a complaint.
In Walmart, Case No. 11-CA-67171, an employee alleged that Wal-Mart’s social media policy violated the Act and that he was unlawfully terminated for comments that he posted on Facebook. However, after the employee filed the charge, Wal-Mart implemented a revised policy. The NLRB’s Division of Advice found that the new policy was lawful and negated any need to consider the old policy that the charge was based upon. In his report, the General Counsel identified what he considered to be the most important elements of the Wal-Mart revised policy:
The policy applies to all associates of the corporation and its subsidiaries;
The policy forbids “inappropriate postings,” including “discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct;”
The policy warns that violations of the policy may result in discipline or discharge;
The policy only tells employees that they “are more likely” to resolve work-related complaints by speaking directly to co-workers/supervisors - rather “than posting complaints to a social media outlet;”
The policy prohibits communications “that could reasonably be viewed as malicious, obscene, threatening or intimidating,” that “disparage individuals on the basis of race, sex, disability, religion or any other status protected by law or company policy,” or other communications that “might constitute harassment or bullying;” and,
The policy contains “sufficient examples of prohibited disclosures” (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.
In sum, the General Counsel stated that the revised policy was lawful because it contained “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.”
Bottom line: The Wal-Mart social media policy is worth the read. Although this example is by no means a “one size fits all” answer or guarantee to saving your company from unfair labor practice charges related to your social media policy - it is a very good place to start.