NLRB Acting General Counsel releases new memo on social media cases
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Lafe Solomon, the Acting General Counsel for the NLRB, has issued an operations management memo detailing 14 recent cases in which the Office of the General Counsel dealt with questions arising from social media in the workplace. Half of the cases focused on social media policies, and the other half involved terminations of employees who had recently posted comments on the social media site Facebook.

The Office found five of the seven social media policies to be overbroad and found that two were lawful; one of the two was lawful only after being revised. The Office found that several of the Facebook-related charges were unlawful because they stemmed from unlawful policies, but in one case, the Office recommended upholding the discharge because the employee’s comments were not work-related.

The memo does not reveal the names of the parties out of privacy concerns. Several of the cases are noteworthy, because they represent a departure from the majority of opinions issued by the Office finding no violation of the Act in social media-related cases.

In one case, after an employee at a collections agency was moved to a different call group, the employee blasted her management on her Facebook page. A conversation ensued with several co-workers in her post, with some of the colleagues saying that they were “behind” her. The employee was then fired. The Office found that the social media policy was overbroad because it prohibited “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” That prohibition, found the Office, could be interpreted as restricting Section 7-protected statements, such as complaints of unfair treatment. Further, because the employee had initiated the conversation to complain about being moved to a less-desirable work group and because the conversation involved co-workers and the terms and conditions of employment, the Office found that the Facebook conversation was protected, concerted activity under the Act. Thus, the termination violated the Act.

In another case, the Office found that an employer unlawfully terminated an administrative assistant who posted comments on Facebook complaining about being reprimanded for her involvement in her fellow employees’ work-related problems. The employee had complained on Facebook about the termination of one of her co-workers, saying that she did not like that the employee was fired “for asking for help.” The employer told her not to give her opinion to co-workers who came to her for advice. She complained on Facebook about that order and the employer terminated her, citing the most recent posts and an earlier post in which she suggested that her manager displayed sexist attitudes. The Office found that the termination violated the Act, because the Facebook posts concerned terms and conditions of employment and because the employee’s co-workers had participated in several of the conversations. The Office also found that the employer had terminated the employee because it was concerned about where her conversations about terms and conditions of employment could lead.

In a third case, the Office found that a termination resulting from Facebook complaints about a mutual supervisor violated the Act. The employee initiated a Facebook conversation with co-workers after she was angered by the promotion of another co-worker. That conversation involved accusations of mismanagement and failures to provide raises or reviews. The employer terminated two of the employees and disciplined two others over the posts, and the Office found that the employees were engaged in protected concerted activity when they posted comments on Facebook because multiple employees were involved in a discussion that focused on terms and conditions of employment. The Office found that the terminations violated the Act, even though the employees had not made any plans for future concerted action, saying that the conversation was an “indispensable” step towards possible self-organizing.

In a fourth case, the Office found that an employer violated the Act when it terminated an employee who had participated in a co-worker’s Facebook conversation. The conversation focused on the allegedly negative attitude of a mutual supervisor, which they blamed for poor workplace morale. The employee blamed the supervisor and said she “hated the place,” and the employer terminated her. The Office found that it was “well established that employee complaints and criticism about a supervisor’s attitude and performance may be protected” and that, in the instant case, the employee’s post was part of employees’ concerted activity for mutual aid and protection, both because it was a continuation of earlier employee complaints to management about the supervisor, and because it was part of a discussion of shared concerns about terms and conditions of employment. Even though the employee’s comments focused on her own dissatisfaction, the Office found that the comment arose in the context of an ongoing discussion of terms and conditions of employment.

The Office also found that the comment had not lost the protections of the Act under the Board’s Atlantic Steel decision. Although the comment could have undermined morale, it was made during a discussion of terms and conditions of employment. The Office found that the “nature of the outburst” and “location” inquiries of Atlantic Steel combined to require consideration of the impact of the fact that the Facebook discussion could be viewed by third parties. The employer had argued that the employee had publicly disparaged the employer, thus justifying her termination, but the Office found that although the comments were critical, they were not defamatory and were not critical of the employer’s business policies or product. Thus, the Office found that the statement was protected language under the Act.

An employer’s social media policy was at the heart of another case in which the Office found that the policy, seen in the proper context, would not be seen as inhibiting protected actions. The policy allowed the employer to ask employees to confine their social networking to matters unrelated to the company, if securities regulations so required. The employer then barred employees from discussing in any form of social media “embargoed information,” such as pending reorganizations. The Office found that the rules were not unlawful, because even though the requirement could be construed to restrict employees from communicating regarding their terms and conditions of employment, in the overall context, employees reasonably would interpret the rule to address only those communications that could implicate security regulations. The Office also noted that employees do not have a protected right to disclose embargoes on corporate information and, thus, could not reasonably interpret the rule to prohibit communications about their working conditions.

Similarly, in a fifth case, an employee’s criticism of his employer following a deadly workplace shooting did not lose the Act’s protections. After the shooting, the employee had asserted that the employer’s conduct led to the shooting and frequently criticized the employee’s management style in published letters to a newspaper and in online comments on the paper’s website. Eventually, the employee posted a presentation online that he had made to his local council, charging the employer with Charging Party made a presentation multiple unfair labor practices filed, forced policy changes, unfair firings, harassment, and workplace bullying. The employer fired the employee, and the Office found that the comments were protected conduct, because they dealt with an ongoing labor dispute and because they were “the logical outgrowth” of conversations the employee had with co-workers about the terms and conditions of employment.

Moreover, the postings were not sufficiently defamatory to lose the Act’s protections. The Office noted that Allied Aviation Service protects public comments that air “highly sensitive issues.” In the instant case, the Office found that many of the online comments related to the employer’s alleged role in the shooting and that, however inflammatory, the comments also related to ongoing labor disputes. Thus, the comments were protected.

Source: CCH Editorial Staff.

NLRB on Social Media
By M. Michael ColeContact, The Recorder, April 19, 2012
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As many employers and employment attorneys are aware, the area of "social media" is a hot topic. Indeed, the latest front in the area of social media has been employer efforts to obtain access to applicants' and employees' Facebook profiles by asking for user names and passwords. This has prompted a wave of proposed legislation banning such practices, the first of which was recently passed in Maryland and with other states likely to follow. The National Labor Relations Board has also taken an active interest in this area. In particular, the board has focused on employer policies and rules which seek to regulate and limit their employees' use of social media.

In one early case, American Medical Response of Connecticut, 34-CA-12576 (NLRB Region 34), the NLRB issued a complaint against a Connecticut ambulance service company that terminated an employee for posting negative comments about her employer and supervisor on Facebook. The NLRB alleged that AMR violated §7 of the National Labor Relations Act because the employee's comments constituted "protected activity" under the act. Of note, the complaint also took issue with aspects of the employer's social media policy, including restrictions on employees' ability to post pictures of themselves depicting the company in any way and restrictions on employee comments about the company, supervisors, co-workers or competitors. Although the case settled, as part of the settlement, the employer agreed to revise what the NLRB termed its "overly broad rules" so as to "ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions."

Since the American Medical Response case, the NLRB has continued to take an active role in policing employer social media policies. Back in August 2011, the NLRB's general counsel issued a report summarizing recent NLRB decisions on the application of the NLRA to employee social media activity on such sites as Facebook and Twitter. The report reviewed and summarized recent decisions on whether employees who were disciplined for social media activity were engaged in "protected activity" under the NLRA. The report also examined decisions that considered whether certain employer-promulgated social media policies were overbroad and violated the NLRA.

The NLRB's general counsel issued an updated report on Jan. 24. The new report summarized decisions addressing a variety of social media policies and provisions. For example, the NLRB took issue with a no-defamation policy that broadly prohibited employees from making disparaging comments about the company. Likewise, the NLRB found unlawful a policy that broadly prohibited discriminatory, defamatory or harassing web entries about the work environment or work-related issues. Where, however, an employer prohibits defamatory or disparaging comments as part of a rule which also prohibits other conduct such as making vulgar, obscene, threatening or intimidating posts, the board is more likely to view that policy as lawful given that it more clearly delineates for employees what is prohibited conduct and would not reasonably be understood to restrict an employees' rights under the NLRA.

In another case, the NLRB took issue with a broad confidentiality clause that prohibited employees from disclosing or communicating about confidential, sensitive, nonpublic information concerning the company without prior approval. The board took the view that a provision like this could reasonably be interpreted to prohibit an employee from discussing their terms and conditions at work, such as wages, which would be a violation of NLRA rights. In contrast, an employer's policy that prohibited the disclosure of confidential or proprietary information such as personal health information about the employer's customers or patients was deemed lawful because, in context, employees would understand that the rule was intended to protect the employer's customers and was not a restriction on NLRA rights.

The NLRB is also policing how employers may restrict employees from the use of the employer's logos and trademarks. Yet again, the NLRB took issue with a broad policy that prohibited the use of the company's name or service marks outside the course of business without prior approval. The NLRB's view is that employees have the right under the NLRA to use a company's name and logo while engaged in protected activity, i.e., paper-leafleting or picketing. While paying lip service to a company's interest in protecting its service marks and reputation, the board took the position that an employee's noncommercial use of a company name, logo or other trademark did not implicate these interests.

More generally, the NLRB also has taken issue with policy terms that are undefined and vague. Prohibitions on "disrespectful conduct," "inappropriate conversation" and "unprofessional communication" are all problematic in the board's view because they could be construed by employees as restricting rights under the NLRA.

In the wake of increased NLRB activity in this area, many employers have taken to relying on disclaimers in their handbooks which state that their policies are not intended to interfere with their employees' NLRA rights. As summarized in its most recent report, however, the NLRB has taken a harsh stance with regard to disclaimers. In the case at issue, the employer's disclaimer stated that its policies would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. The NLRB's stance was that this disclaimer was not sufficient to save a policy which otherwise prohibited an employee from discussing matters in an "inappropriate" manner because employees could not be expected to discern what is "inappropriate" or what is otherwise allowed.

Continuing the trend of the agency's activism in the social media arena, an NLRB administrative law judge, in G4S Secure Solutions (USA), 28-CA-23380 (March 29, 2012), recently held that a security company's social media policy, which prohibited employees from discussing "work-related legal matters," violated the NLRA. Once again, the NLRB took a dim view of employer disclaimers. In this case, the disclaimer stated that the employer's policies were not to be construed or applied in a way that interfered with employees' rights under federal law. Echoing earlier cases, the ALJ decided that the disclaimer did not save the provision because lay employees would not understand what is permissible under "federal law" and what would be a prohibited discussion of a "legal matter." The ALJ also found that the company's confidentiality provision violated the NLRA because it did not define what constituted "confidential information" and prohibited employees from giving interviews or making public statements about the company's "activities or policies," without providing a definition of those terms.

Continued developments from the NLRB over the past year highlight the need for employers to take a close look at their own social media policies and other employment policies. The ALJ's recent decision, consistent with prior decisions and the general counsel's reports, highlights the importance of having a carefully defined and crafted policy and handbook, as well as the risk of relying on disclaimers to save otherwise overbroad provisions.

M. Michael Cole is an associate with Miller Law Group, a women-owned employment law firm in San Francisco. He represents employers in complex litigation, including the litigation of wage-and-hour class and/or collective actions in the retail, financial services, insurance and food services industries.

In Practice articles inform readers on developments in substantive law, practice issues or law firm management. Contact Vitaly Gashpar with submissions or questions at vgashpar@alm.com.

Does the NLRB 'Like' Your Social Media Policies?
By Doreen S. Davis and Ann Marie Painter, Corporate CounselApril 16, 2012
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Although unions represent less than 7 percent of all private-sector workers today, President Barack Obama's National Labor Relations Board has aggressively pursued multiple initiatives to expand the reach of the NLRB to all private-sector corporations -- without regard to the presence or absence of unions. Section 7 of the National Labor Relations Act (NLRA) grants employees broad rights to discuss wages, hours, and other terms and conditions of employment not only with each other but also with the public at large. The rights apply even if no union is organizing or representing employees.

One current NLRB initiative piggybacks on the massive expansion in the use of online "social media" by employees, including the growth of Facebook, Twitter, and other online venues allowing employees to communicate both at work and outside the workplace. Less than six months after publishing his first report on social media issues in August 2011, the NLRB's acting general counsel issued his second report on January 24, 2012, outlining 14 cases in which he interprets both the language of social media policies and specific disciplinary situations. He finds many statutory violations that might surprise even labor lawyers who have practiced for decades.

Against this backdrop of heightened NLRB attention to social media, employers understandably remain concerned about employees' online activities that criticize management or fellow employees, expose confidential or trade secret information, or otherwise attack the company's products or services. But social media policies, even those drafted with the best intentions, run a serious risk of violating the rights of employees as defined by section 7 of the NLRA. And perhaps most surprising, an employer may violate the NLRA simply by instituting a policy or procedure that could be "reasonably construed" to restrict or prohibit section 7-protected activity even if the policy has never been enforced in a way that actually restricts protected activities.

Here are some major categories of social media and code-of-conduct policies that often trigger NLRA concerns, and our recommendations for reducing or eliminating the risk of a violation:

Restrictions on disparaging, confrontational, harsh, or even inappropriate communications regarding the company or its employees. Section 7 of the NLRA has been interpreted as allowing employees the right to say some pretty extreme things about their company, supervisors, and co-workers without being subject to discipline or termination, as long as the communications relate to wages, hours, or terms and conditions of employment. This standard has long been applied to employee conversations that occur around the watercooler. However, the NLRB has signaled that it will give employees even more leeway to criticize their company and its supervisors and managers on social media, as many posts do not "disrupt" the workplace.

Lawful anti-disparagement provisions in corporate policies should be limited to communications regarding company products or services and/or linked to antiharassment guidelines, to prevent racial, sexual, or other like forms of harassment between employees. Employers do not have to tolerate harassment between employees that would otherwise violate Title VII and similar equal rights laws, but they need to be careful to ensure that any policy makes it clear and unambiguous that it is this type of harassment that is prohibited, by explicitly limiting the policy to "unlawful harassment."

Restrictions on the distribution of "confidential" information. Companies have the right to require employees to keep confidential a good deal of information on business secrets, intellectual property, and other similar information. But "personnel" information that addresses wages, hours, or terms and conditions of employment cannot be kept secret as part of a general ban on the dissemination of "confidential information." Confidential information in corporate policies, especially social media policies, should be expressly defined to exclude general information on wages, hours, and terms and conditions of employment.

Restrictions on employees' presenting false, dishonest, or misleading, but not "maliciously false," information. Again, section 7 rights extend broadly and include the right of employees to present objectively false or misleading information if the communications relate to wages, hours, or terms and conditions of employment. Employers may still consider whether to ban "maliciously false" communications, where the employee knows that the information is false and purposefully intends to harm the company or co-workers with the information. The line between "false" and "maliciously false" is not always black-and-white, however, so you need to tread lightly with policy restrictions on presenting false or inaccurate information through social media.

Restrictions on employee use of company logos and trademarks. The current acting general counsel of the NLRB has explained on multiple occasions that regardless of intellectual property rights in company logos and trademarks, employees have the right to use company logos and trademarks in connection with discussions or protests over wages, hours, or terms and conditions of employment. Examples provided to the employer community include the right to make protest T-shirts with company logos, or alternatively to take pictures of company stores or sites and use those pictures in posts related to section 7 "activities." Thus, social media restrictions on the use of company logos or trademarks should expressly indicate that the restriction does not apply to activities that could fall under section 7.

Inclusion of general disclaimer language in policies to indicate that section 7 rights are not infringed. Logically, it makes sense that if a policy specifically states that it should not be read to restrict section 7 rights, an employer should not be found in violation of the NLRA. But the current acting GC of the NLRB has essentially disregarded general disclaimer language in social media and related policies. Thus, employers should not assume that if they include a disclaimer somewhere in their policy, any other language in the policy that could be "reasonably construed" to restrict section 7 activity then becomes acceptable. Including disclaimer language is helpful, nonetheless, and including specific and multiple disclaimers throughout the policy -- in connection with each provision that might arguably limit section 7 activities -- should go a long way in protecting employers that seek to have broad social media restrictions.

Requirement that employees obtain "approval" from the company before identifying or referencing their employment. Any requirements that employees get permission to use personal social media if their employer's name is mentioned should be carefully screened as potentially violative of the NLRA. Likewise, requirements that employees include their own disclaimer on social media sites, such as "the views expressed on this Web site are mine alone and don't necessarily reflect the views of my employer" are "trip wire" language for the current NLRB to find a statutory violation. We recommend that any approval or disclaimer language be limited to social media use relating to company products and services, rather than barring or restricting any mention of the company or its operations in general.

Clearly, there are many seemingly innocuous aspects of social media policies that could be interpreted as restricting section 7 activity, even if the employer has absolutely no motivation or desire to violate employee rights. Social media policies must be crafted with care, always with an eye toward what language could reasonably be read to limit employees from joining with their fellow employees to discuss or protest wages, hours, or terms and conditions of employment.

Most importantly, these section 7 rights apply regardless of whether a union is organizing or actively represents employees. The NLRA's guarantee of an employee's right to engage in protected concerted activity has been the law for over 75 years, but the workplace has changed enormously during that time. The application of NLRA policies in the modern corporate workplace is likely to produce some unexpected twists and turns for employers' counsel in the years ahead, with social media use by employees presenting some previously unforeseen challenges. You'll need to stay logged on and keep watching those tweets. People will talk, and not just around the watercooler.

Doreen S. Davis is cochair of the traditional labor practice group at Morgan, Lewis & Bockius. E-mail: dsdavis@morganlewis.com. Ann Marie Painter is a partner in the firm's labor and employment practice group in Dallas and leads Morgan, Lewis's "Web 2.0" initiative on workplace issues. E-mail: annmarie.painter@morganlewis.com.

NLRB Focus on Social Media
John P. Furfaro and Risa M. Salins, New York Law Journal, 04-06-2012
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Use of Facebook, Twitter, LinkedIn and myriad other social media sites by employees has exploded in recent years. Employees venting on these far-reaching networks about their frustrations in the workplace have the potential to create workplace harassment issues, damage their employers' business reputations and broadcast their employers' confidential information to the world. Yet, there may be limitations on the actions employers can take without contravening the National Labor Relations Act (NLRA), regardless of whether their employees are represented by a labor union, as an employee's social media posts regarding terms and conditions of employment may be deemed protected concerted activity. This month's column discusses the guidance that has been provided by the National Labor Relations Board to date in this evolving area.

Background

Most employers had probably never considered how Facebook and other social media would interact with labor law until the board's Hartford regional office issued a complaint in October 2010 against a Connecticut ambulance company alleging, among other things, that an employee's discharge for posting negative remarks about her supervisor on her personal Facebook page violated the NLRA. See American Medical Response, NLRB Case No. 34-CA-12576.

Section 7 of the NLRA protects the rights of employees (unionized or non-unionized) to engage in "concerted activities," which include conferring regarding terms and conditions of employment. Lafe Solomon, the board's Acting General Counsel (AGC), described American Medical Response as a straightforward case, stating, "[W]hether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that." See Greenhouse, Steven, "Company Accused of Firing Over Facebook Post," New York Times¸ Nov. 8, 2010, available at http://www.nytimes.com/2010/11/09/business/09facebook.html.

While the case ultimately settled, it led to an onslaught of social media cases raised through the board. As a result, the AGC asked the board's regional offices to submit social media cases to the board's Division of Advice (within the Office of the General Counsel), in the interest of tracking them and devising a consistent approach.

AGC Reports

In August 2011, the AGC issued a report detailing the outcome of his office's investigations into a number of social media cases. See Memorandum OM 11-74, available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743. Various Facebook postings were found to constitute protected activity under the NLRA, including employees complaining to each other (with expletives) about their employer's tax withholding practices; a commission-paid employee posting pictures and sarcastic commentary criticizing the inexpensive manner in which his employer conducted a sales event; an employee posting negative comments about a supervisor who was investigating a customer complaint against the employee; and multiple employees posting comments criticizing the work performance of their co-workers and staffing-level problems. Notably, each of those cases involved employees who criticized specific employment practices or work conditions, and they all involved online discussions among multiple employees.

In an effort to provide further guidance to employers, on Jan. 24, 2012, the AGC issued a second report (January 2012 Report) describing additional social media cases his office reviewed. See Memorandum OM 12-31, available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45807d6567.

The January 2012 Report underscores two points made in the earlier survey: (1) an employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees; and (2) employer social media policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. The January 12 Report also provides additional insight into how the board may evaluate social media cases in several areas.

Inciting Action

The January 12 Report indicates that social media posts will more likely be found protected by the NLRA where they incite active participation from co-workers in the online discussion. For instance, the AGC's office found that an employee working for a collections agency was engaged in protected concerted activity when she posted a Facebook status update with an expletive complaining that a supervisor had reassigned her without good cause. The employee's posting was followed by an online dialogue that included expressions of support by several current and former employees of the company who added their own criticisms of the employer and even discussed a possible class action against the company.

On the other hand, an employee of a chain of home improvement stores, upset that a supervisor reprimanded her in front of a manager, updated her Facebook status with an expletive and the name of the employer's store. Several individuals, including one co-worker, indicated they "liked" that status. However, when the employee added a comment that the company did not appreciate its employees, no co-workers responded. The AGC's office concluded the Facebook postings were merely individual gripes, not protected by the NLRA, because she "had no particular audience in mind when she made the post" and "the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action."

The January 2012 Report also signifies that social media postings that are a direct result of prior offline concerted activity will likely be protected. For example, a hospital nurse made various posts on Facebook and online message boards about the hospital's poor management style which allegedly included bullying, harassment, abuse of employees and unfair firings that had been ongoing for at least three years, in response to which several co-workers posted messages of support, e.g., "Thank you for speaking for us who do not dare." Since the posts were found to be part of an ongoing labor dispute related to the hospital's treatment of employees and a "logical outgrowth of other employees' concerns," they were found to be protected by Section 7.

Preemptive Strikes

Significantly, in 2011 the board considerably expanded the scope of protected concerted activity in cases outside the social media context, and the January 2012 Report suggests these broadened concepts will be applied in social media cases. The board in Parexel International, LLC, 356 NLRB No. 82 (Jan. 28, 2011), held that even when an employee had not engaged in concerted activity but instead made an individual complaint to her employer about a perceived wage disparity, the employer violated the NLRA by discharging the employee to prevent the possibility that she might engage in concerted activity in the future (a so-called preemptive strike).

Relying on Parexel, the January 12 Report states that an employer's discharge of an administrative assistant, who posted Facebook comments complaining about being reprimanded by her employer for her involvement in a co-worker's work-related problems, was an unlawful preemptive strike. The AGC's office found the company president knew other employees came to the administrative assistant for advice about working conditions and had previously counseled her not to offer them her opinions because of a fear of what may follow from those discussions.

New Standard

The January 2012 Report also sets forth a potential new standard for judging whether social media posts are so egregious that they lose the protection of the NLRA, as the AGC's office for the first time recognized that statements made on the Internet can cause greater harm to the workplace than conversations around the water cooler.

In a case involving a woman fired from a packaging facility following a Facebook posting severely criticizing the company and its operations manager, the AGC's office analyzed whether her posting somehow lost the protection of the NLRA. The new test that was applied was a modified Atlantic Steel, 245 NLRB 814 (1979), analysis—traditionally used to analyze communications between employees about supervisors and whether such communications undermine workplace discipline—that also borrows from the Jefferson Standard test established by the Supreme Court in NLRB v. IBEW, Local No. 1229 (Jefferson Standard), 346 U.S. 464 (1953).

The Jefferson Standard test has traditionally been used to analyze handbills meant to appeal to the general public, with an eye toward whether such communications are so disparaging of the employer or its product as to lose the protection of the NLRA. Applying this hybrid test, the AGC's office found that the fact that the Facebook discussion at issue occurred at home during non-work hours, was not accompanied by verbal or physical threats and was not in any way critical of the employer's product or business policies weighed in favor of finding that the Facebook posting did not lose protection of the NLRA.

Employer Policies

The board has not pronounced any specific rules for employers to follow in drafting social media policies. However, based on the guidance to date, it seems that policies prohibiting social media posts that violate the company's rules against discrimination or harassment or requiring employees to comply with SEC and FTC regulations in their online posts are unlikely to violate the NLRA. On the other hand, we can glean from the January 2012 Report several types of provisions that the board would likely view as overbroad and in violation of NLRA §8(a)(1), which makes interference with collective activity an unfair labor practice.

For instance, the January 2012 Report suggests a policy prohibiting use of social media to post pictures depicting the company in any way, such as pictures containing the company uniform or logo, is unlawful. The AGC's office found employees have a right to use the company's logo to communicate with other employees or the public about a labor dispute.

The January 12 Report also found that a policy barring employees from "making disparaging comments when discussing the company or the employee's superiors, coworkers, and/or competitors" would reasonably be construed to restrict Section 7 activity, such as statements that the employer is not treating employees fairly or paying them sufficiently. Policies generally prohibiting "offensive conduct," "inappropriate discussions," or "rude and discourteous behavior" were found to be overbroad for similar reasons.

In addition, the January 2012 Report suggests that a policy broadly prohibiting employees from disclosing or communicating confidential, sensitive or non-public information concerning the company to anyone outside the company is unlawful. Such a restriction offers no examples of what is considered confidential or sensitive and precludes employees from discussing their wages and other terms and conditions of employment.

Moreover, the AGC's office found inappropriate a provision providing "that employees needed approval to identify themselves as the employer's employees and that those employees who had identified themselves as such on social media sites must expressly state that their comments are their personal opinions and do not necessarily reflect the employer's opinions." The January 12 Report states that such a provision stifles employees' ability to locate other employees, thus, inhibiting their ability to organize, a protected right under Section 7.

Significantly, the January 12 Report states that a "savings clause" or disclaimer (e.g., clarifying that the policy will not apply to any activity protected by the NLRA) will not cure an otherwise overbroad social media policy.

Pending Decisions

Three cases involving social media questions are currently pending before the board. In Hispanics United of Buffalo, NLRB Case No. 3-CA-27872, the administrative law judge (ALJ) ruled that a Buffalo non-profit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including workload and staffing issues. In Karl Knauz BMW, NLRB Case No. 13-CA-46452, the ALJ held that an employee's termination for posting photos (including sarcastic commentary) of an accident at a neighboring Land Rover dealership owned by Knauz was not unlawful, as the posts had no connection to any terms and conditions of employment. In Triple Play Sports Bar, NLRB Case No. 34-CA-12915, the ALJ found that the employer unlawfully terminated two employees for participation in a Facebook conversation regarding their employer's withholding of taxes, and that the NLRA protected an employee whose only involvement in that online discussion was to click the "Like" button on the Facebook page.

It is expected that the board's rulings in these cases will provide employers with further guidance on how to tailor their social media practices and policies.

John P. Furfaro is a partner at Skadden, Arps, Slate, Meagher & Flom. Risa M. Salins is a counsel at the firm.