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“Savings clause” Did Not Save Chilling Effect of Social Media Policy


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Pirtle

By Mary Leigh Pirtle


Chilling effect?
An employer unilaterally implemented a social media policy without bargaining with the union.  Under the policy, employees were prohibited from posting information regarding the employer that could be deemed “confidential” or “non-public.”  After a complaint by an employee, the NLRB reviewed the policy and stated this portion was unlawful because the phrase “non-public information,” in absence of clarification, was too vague.  The NLRB believed employees could reasonably interpret this vague restriction to include subjects involving their working conditions.  Additionally, the NLRB stated it has long recognized “confidential information,” without additional limiting language, could be reasonably interpreted to include information concerning the terms and conditions of employment.  Because discussions concerning working conditions and terms and conditions of employment are protected Section 7 activities, the NLRB found this portion of the social media policy was unlawful under the NLRA.

The social media policy also prohibited employees from using the employer’s logo, trademarks or graphics in their social media activities.  While the NLRB recognized employers have a proprietary interest in its trademarks, logos, name, and other similar material, the NLRB stated an employee’s use of these items while engaging in Section 7 activity would not infringe on this interest.  Rather, an employee’s non-commercial use of a name, logo, or other trademark to identify the employer on electronic leaflets, cartoons or even photos on picket signs is generally accepted Section 7 activity.  Because this portion of the social media policy would significantly chill such activity, it was also deemed unlawful.

Last, the NLRB analyzed a portion of the social media policy prohibiting employees from photographing or videotaping the employer’s premises.  Again, the NLRB found this restriction to be unlawful because employees could reasonably interpret the policy to prevent them from using social media to communicate and share information regarding Section 7 activities through pictures or videos of employees engaged in picketing.

Savings clause ineffective
The employer argued the social media policy’s “savings clause,” which generally stated the policy was not intended to prohibit Section 7 activties, cured the unlawful provisions of the policy.  However, the NLRB was not persuaded.  The NLRB stated “an employer may not prohibit specific employee activity protected by the Act and then escape the consequences of the prohibition by a general reference to rights protected by the Act.”  In explaining its position, the NLRB stated a general disclaimer is insufficient in instances involving an overbroad prohibition if employees would not understand from the disclaimer protected activities are in fact permitted.

In light of this Advice Memorandum, the NLRB will take a firm stance on broadly drafted social media policies lacking limiting language or context.  To ensure your company’s social media policy does not violate the NLRA, clarify and restrict the scope of your policy by including examples of exactly what conduct is prohibited in order to avoid any misinterpretation. 

 

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