Citing SEC Compliance When Limiting Social Media Use Okay; Other Social Media Rules Overbroad: NLRB General Counsel's Office | Practical Law

Citing SEC Compliance When Limiting Social Media Use Okay; Other Social Media Rules Overbroad: NLRB General Counsel's Office | Practical Law

The Office of the General Counsel of the National Labor Relations Board (NLRB) recently released an advice memorandum concluding that several rules in a social media policy were unlawfully overbroad, including rules that prohibited the disparagement of executive leadership or employees and rules that prohibited the use of the employer's proprietary graphics or photographs of the employer's property. However, the Division of Advice also approved of several rules, most notably a rule that restricted employees' social media activities when necessary to ensure compliance with Securities Exchange Commission (SEC) regulations.

Citing SEC Compliance When Limiting Social Media Use Okay; Other Social Media Rules Overbroad: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 12 Jan 2016 • USA (National/Federal)
The Office of the General Counsel of the National Labor Relations Board (NLRB) recently released an advice memorandum concluding that several rules in a social media policy were unlawfully overbroad, including rules that prohibited the disparagement of executive leadership or employees and rules that prohibited the use of the employer's proprietary graphics or photographs of the employer's property. However, the Division of Advice also approved of several rules, most notably a rule that restricted employees' social media activities when necessary to ensure compliance with Securities Exchange Commission (SEC) regulations.
On January 8, 2016, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released a revised advice memorandum dated September 22, 2011, in which it analyzed several rules from Rite Aid Corporation's social media policy.
Although advice memoranda do not carry the force of binding precedent from the panel (Board) heading the judicial functions of the NLRB, this memorandum sets out:
  • The types of social media policies about which the NLRB's General Counsel might issue unfair labor practice (ULP) complaints.
  • Factors that the NLRB General Counsel's office uses when evaluating whether marginal social media policies are lawful.
The memorandum, which was issued in 2011 but published only recently because it related to pending cases, includes an analysis largely similar to a memorandum that the General Counsel issued last year (Legal Update, NLRB General Counsel Red Flags Common Terms in Employment Rules). However, this memorandum also notes that the General Counsel's Office would not issue ULP complaint allegations concerning rules that:
  • Restrict employees' social media activities when necessary to ensure compliance with SEC regulations.
  • Protect defined proprietary and confidential information.
  • Create the impression of surveillance, where the employer noted that it might monitor employees' social media activities.
The rules that the Division analyzed are separated by category and set out below.

Disparagement of Executive Leadership or Employees

"Associates shall not use social media to disparage Rite Aid's or competitors' products, services, executive leadership, employees, strategy, or business prospects. (emphasis added in original)."
Advice concluded that the rule's prohibition of the disparagement of the employer's executive leadership or employees was unlawfully overbroad because:

Use of Company's Proprietary Graphics or Photographs of Company's Property

"Associates may not use the Company's logo, trademark, or other proprietary graphics without express written permission to do so."
"Associates shall not post pictures or video of any Rite Aid store, distribution center, office, or other property on any social networking site."
Advice concluded that both rules were unlawfully overbroad because employees would reasonably understand them to restrict protected communication, such as:

Compliance with SEC Regulations

"The Company may, in its sole discretion, request that you confine your social networking to matters unrelated to the Company if it determines that this is necessary or advisable to ensure compliance with securities regulations and other laws."
Advice concluded that this rule was lawful because, in context, employees would understand the rule to prohibit communications that could implicate securities regulations rather than communications about the terms and conditions of employment (cf., Tradesmen Int'l, 338 N.LR.B. 460, 461 (2002)).

Proprietary and Confidential Information

"Associates shall not use or disclose confidential and/or proprietary information that you acquire in the course of your employment with [the Employer]. This includes personal health information about [the Employer's] customers/patients (or any other information that could be used to identify customers, patients, or associates) and proprietary or other confidential business information."
"Associates shall not discuss in any form of social media 'embargoed information,' such as launch dates, release dates, and pending reorganizations."
Advice concluded that both rules were lawful because:
  • The nature of the employer's business would cause employees to understand that the rule prohibiting the disclosure of confidential information was intended to protect customers' privacy interests rather than to restrict employees' protected communications.
  • Employees have no protected right to disclose "embargoed information" such as launch dates.
    (Cf., Tradesmen Int'l, 338 N.LR.B. at 461.)

Viewpoint Disclaimer

"While engaging in social networking activities for personal purposes, whether on online pages created by yourself or others, you must indicate the following statement: 'the views expressed in this (blank) are mine alone and do not reflect those of my employer.' You should not refer to Rite Aid by name and you may not publish any promotional content on that site or forum."
Advice concluded that this rule was lawful because the context of the rules would cause employees to understand the rule to apply to communications that promoted or advertised on behalf of the employer rather than protecting communications about terms and conditions of employment (cf., Tradesmen Int'l, 338 N.LR.B. at 461).

Surveillance of Social Networking Activities

Advice also reviewed the employer's social policy guideline, which informed employees that "the Employer might review their social networking activities, even those using personal equipment and on non-working time."
Advice approved of this guideline because, once the employer removed from its social media policy the unlawfully overbroad rules discussed above, the employer's warning that it might review employees' social networking activities would no longer have a coercive effect (cf., Tradesmen Int'l, 338 N.LR.B. at 461).