NLRB Issues Report on Employer Social Media Policies
The National Labor Relations Board (“NLRB”) recently issued another report analyzing provisions of six different employer social media polices. As we have previously discussed, these periodic NLRB reports provide guidance for how to draft and apply policy provisions that attempt to restrict or guide employees’ use of social media. Specifically, in the latest report, among other issues, the NLRB thoroughly discusses prohibitions on disclosing confidential and proprietary information, posting photographs and other content that depicts other people, and requiring reporting of policy violations. In summary, here are some important take-away points from the most recent report:
- Be careful to define confidential and proprietary information if you prohibit its disclosure. Examples are often helpful.
- If you prohibit use of the employer’s name or trademarks, make sure it is narrowly tailored.
- Be careful when instructing employees on posting photos, videos, quotes, or other content that may involve third parties. Although third party rights may be an issue, if an employer prohibits this outright, it may be considered overbroad.
- Instructing employees to be cautious or even develop a healthy suspicion can be acceptable, but it could be a problem to require employees to report certain activities or communications of others.
- Even requiring posts to be “accurate and not misleading” could be overbroad if not clarified or further defined by example or otherwise.
- Be careful instructing employees to check with the employer or get prior approval before posting because these types of provisions could be deemed as inhibiting protected activity.
- General prohibitions on offensive, controversial, inflammatory, or inappropriate content may be overbroad, so make sure they are narrowly tailored and consider providing examples.
- Prohibiting employees or telling them to think carefully about connecting to their peer employees on social media platforms may be considered unlawful.
- Be careful when considering how and whether to restrict employees’ comments on legal matters, litigation, or disputes.
Through these reports, the NLRB continues to adjust its position regarding certain provisions commonly found in employer social media policies and provide specific examples of both unlawful and acceptable language. Remember to have your company’s social media policy reviewed periodically in light of the evolving NLRB guidance.