Clearly Unlawful. Understandably, the Memorandum finds to be unlawful those policy provisions that explicitly restrict activity which is protected under the NLRA. For instance, the employer likely should have realized beforehand that the following rules would be found lawful if examined by the NLRB:
• Rule prohibiting disclosure of non-public information, which included personal information about a co-worker, such as his or her performance, compensation or status in the company.
• Rule prohibiting disclosure of information about co-workers or contingent employees.
• Rule cautioning employees from “friending” co-workers.
• Rule requiring employees to report any unusual or inappropriate internal social media activity because it could encompass lawful union activity.
• Rule prohibiting the discussion of shutdowns or work stoppages. “Information about shutdowns and work stoppages clearly involves employees’ terms and conditions of employment.”
• Rule requiring employees to limit their discussions over dissatisfaction with the workplace to their co-workers as long as “access to such discussions is restricted to other [Employer] employees and not generally accessible to the public.” Employees may communicate with the public about a labor dispute.
• Rule prohibiting the making of disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services.
• Rule prohibiting employees from contacting the media or discussing matters about the company with the media. “Employees have a protected right to seek help from third parties regarding their working conditions.” Instead, the employer could have used the following language: “Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.”
Overly Broad and/or Ambiguous. However, the Memorandum also finds to be unlawful any policies which any employee could possibly find to restrict activity which is protected under the NLRA. (The memorandum says that a rule is only unlawful if an employee could “reasonably construe the language” to violate activity which is permitted under the NLRA, but the memorandum’s application of this test stretches and ignores the “reasonableness” prong of this test). “Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful.”
• Rule that prohibits release of confidential customer, company or co-worker information. An employee could conceivably interpret this to apply to discussion of employees’ wages (a protected activity). This was a justification provided for virtually every rule found to be overly broad.
• Rule prohibiting discussion of confidential information with individuals who do not have a need to know it to do his or her job.
• Rule prohibiting the discussion of confidential information in public, in break rooms, in restrooms or at home. The NLRB did not show any sensitivity to the need to protect proprietary or financial information from corporate spies or providing non-public information to investors.
• Rule requiring employees to report unauthorized disclosure of confidential information.
• Rule that employee be sure that his/her posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site. Criticism of the employer and its labor policies are protected under the NLRA unless they are not maliciously false.
• Rule prohibiting disclosure of non-public information, which included the financial performance of the company, information that has not already been disclosed by authorized persons in a public forum; and personal information about a co-worker, such as his or her medical condition.
• Rule requiring employee to check with employer when in doubt about the propriety of a post.
• Rule prohibiting employee from posting photos, music, videos, and the quotes and personal information of others without obtaining the owner’s permission and ensuring that the content can be legally shared, and from using the Employer’s logos andtrademarks. This information is overly broad because it could be applied to prohibit posts about picketing activity (when picket signs incorporate employer’s trademarked logo, etc.)
• Rule prohibiting offensive, demeaning, abusive or inappropriate remarks for being as out of place online as they are offline, even if they are unintentional. This rule could somehow be construed to apply to criticism of the employer’s labor policies or treatment of employees.
• Rule prohibiting comment on any pending or threatened litigation. The Acting General Counsel specifically “found that the prohibition on employees’ commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the Employer.” Nevermind that an employer has a legitimate interest in avoiding damaging admissions being made or inappropriate retaliation or disparaging comments being made about the plaintiff under various civil rights laws.
• Rule admonishing employees not to pick fights and to avoid controversial topics, like religion or politics. “Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion.” Therefore, because this rule could conceptually be construed to prohibit “robust” discussions about working conditions and unionism, it is unlawful. I cannot make this stuff up.
• Rule requiring employees to obtain permission before using content or images protected by copyright laws. This rule was found unlawful because it could be construed to prohibit posting pictures of employees working in unsafe conditions or on a picket line.
• Provision encouraging employees to resolve concerns directly with co-workers or managers instead of posting them online. “An employer may reasonably suggest that employees try to work out concerns over working conditions through internal procedures. However, by telling employees that they should use internal resources rather than airing their grievances online, we found that this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.”
• Rule prohibiting the posting of “information that could be deemed material nonpublic information or any information that is considered confidential or proprietary.” According to the NLRB, the “term material non-public information,” in the absence of clarification, is so vague that employees would reasonably construe it to include subjects that involve their working conditions.” This was found to be particularly true even when the terms were limited to include: “company performance, contracts, customer wins or losses, customer plans, maintenance, , cost increases, customer news or business related travel plans or schedules” because that information “has potential relevance in collective-bargaining negotiations regarding employees’ wages and other benefits. Information about contracts, absent clarification, could include collective-bargaining agreements between the Union and the Employer.”
• Rule discouraging posting that could harm the image and integrity of the company. An employee could “construe it to prohibit protected criticism of the Employer’s labor policies or treatment of employees.”
• Rule prohibiting use of social media “on Company time; The Memorandum’s discussion of this made no sense. It said simply that employees “have the right to engage in Section 7 activities on the Employer’s premises during non-work time and in non-work areas.” When did “Company time” (i.e., on the clock) become “non-work time”?
• Rule requiring employees to notify the General Counsel’s office and/or management of any correspondence and telephone calls received from government agencies.
Acceptable Limitations. The Memorandum found the following rules and provisions to be lawful:
• Provision admonishing employees to be suspicious and to not be tricked into disclosing confidential information;
• Rule prohibiting disclosure of non-public information, which included information directly or indirectly related to the safety performance of the employer’s systems or components for products; and the employer’s trade secret, confidential or attorney-client privileged information;
• Rule prohibiting disclosure of personal information about customers, customer patients, physicians, or business parties;
• Rule requiring disclosure of personal information (which did not include co-workers or temp employees) only to authorized individuals.;
• Rule that posting that could constitute “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers. . . . ;
• Rule prohibiting posting anything “in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.”
• Rule prohibiting an employee from representing any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer].
• Rule requiring employees to post a disclaimer whenever they comment about the Employer: ‘The postings on this site are my own and do not represent [Employer’s] positions, strategies or opinions.’
The Memorandum also found no fault with the following policy provisions:
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.
Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.
