NLRB Upholds Employer’s Restrictive Social Media Policy
By Aaron Chaet
On January 4, 2021, the National Labor Relations Board (“the Board”) issued a 2-1 decision holding that an employer’s social media policy, which prohibited employees from engaging in certain communications, did not violate employees’ concerted activity rights afforded under the National Labor Relations Act (“NLRA”).FN1 In its ruling, the Board affirmed recent decisions regarding employers’ handbook policies.FN2
First, the Board, citing to its 2019 La Specialty decision, affirmed that a company’s social media policy should be evaluated as a whole, and that the Board should refrain from reading particular phrases in isolation.FN3 The Board reasoned that although the first sentence in the policy prohibiting the general disclosure of “confidential information regarding the company and your coworkers”, when read in isolation would violate employees’ NLRA rights, the policy, as a whole, did not violate employees’ NLRA rights because the restrictive language “is immediately followed by express prohibitions limited to the use of ‘copyrighted or trademarked company information, trade secrets, or other sensitive information….”FN5 As a result, the policy “would not be reasonably understood by employees to prohibit the sharing of information pertaining to their terms and conditions of employment.”FN6
Second, the Board, relying on its 2017 Boeing decision, gave significant weight and deference to the employer’s legitimate justification for its policy that restricted employees’ use of the company’s name, logos, and trademarks in social media.FN7 The Board further stated that when the policy is viewed as a whole “an objectively reasonable employee would understand” that the policy was preventing employees from speaking on behalf of the company as opposed to preventing employees from referencing the company by name in posts critical of the company’s terms and conditions of employment, which would be protected by the NLRA.FN8
TAKEAWAY
Although NLRB appears to have loosened the restrictions on employers’ social media policies, employers should remain cautious when drafting and revising policies. Employers should review their social medial policies to ensure that the restrictions, when viewed as a whole, are limited to employers’ legitimate business interests. Employers should contact the attorneys at Campbell Litigation to assist with drafting and revising social media policies for NLRA compliance.
Footnotes:
FN1-Medic Ambulance Service, Inc., 20-CA-193784 (2021) available at https://www.nlrb.gov/cases-decisions/decisions/board-decisions.
FN2- La Specialty Produce Co., 368 NLRB No. 93 (2019); and Boeing Co., 365 NLRB No. 154 (2017).
FN3- Medic Ambulance Service, Inc., 20-CA-193784 at 3 citing La Specialty Produce Co., 368 NLRB No. 93 (2019).
FN4 – Id.
FN5 – Id.
FN6- Id. citing Boeing Co., 365 NLRB 17 (2017)
FN7 - Id.