Main Menu
NLRB Provides Guidance on What Employers Need to Know When Drafting Social Media Policies

Even if they were not doing so before, employers will definitely not be “friending” the National Labor Relations Board (NLRB) anytime soon. Lafe E. Solomon, the NLRB’s Acting General Counsel, recently issued a third statement on employers’ social media policies and rules. In this “Advice Memorandum,” Solomon sets forth his opinion on the lawfulness of employer policies concerning employees’ use of social media. Given that the General Counsel is essentially the NLRB’s prosecuting attorney, this memorandum helps illustrate his future enforcement agenda. 

The fact that the General Counsel has now issued three memoranda on this subject, and that all three are not entirely consistent, may frustrate many employers. Regardless, employers should take note of this memorandum, as it carries important implications for those who wish to regulate employees’ use of social media. First, this memorandum identifies specific social media policies that the General Counsel believes violate the National Labor Relations Act (NLRA), because employees could potentially construe them to limit the specific rights the NLRA seeks to protect. For example, the General Counsel deemed one policy unlawful because it prohibited employees from disclosing “confidential guest, team member or company information.” The General Counsel also found various other provisions unlawful because they sought to prevent employees from disclosing confidential information.

Solomon reasoned that employees may interpret such provisions as limiting their right to discuss information regarding the terms and conditions of employment—a protected right under the NLRA. The General Counsel also deemed unlawful a policy that prohibited employees from disclosing “non-public information” on social media sites. Solomon found that an employer’s restriction on sharing such information was overbroad and thus illegal, because employees could construe it as limiting their ability to discuss the terms or conditions of their employment. The memorandum similarly designates other specific policy provisions as unlawful for being overly broad including, for example:

  • a provision seeking to limit co-workers “friending” one another on social media websites, because it might discourage co-workers from communicating with one another;
  • a broad prohibition on the disclosure of personal information about other employees, because “personal information” might reasonably be construed by employees to also include protected information about wages and working conditions;
  • a directive not to comment on any legal matters, including pending litigation, because the General Counsel found that doing so “specifically restricts employees from discussing the protected subject of potential claims against the Employer;” and
  • a rule reminding employees to maintain a “professional tone,” because employees may interpret such an instruction as prohibiting them from discussing such inflammatory topics as their working conditions or unionism in general.

These examples, among others, demonstrate that the General Counsel generally views sweeping prohibitions as unlawful, especially where the policy fails to include limiting language that “exempts” activities protected under the NLRA, or otherwise provides clarifying examples. Employers should note, however, that such a catch-all “savings clause” (i.e. a clause that makes a policy subject to all “applicable laws and regulations”) will not always save a policy that is otherwise unlawful.

Altogether, this memorandum reiterates that the General Counsel will not give employers the benefit of the doubt on social media policies. If an employee could reasonably construe your policy as restricting any protected concerted activity, e.g., group complaints about working conditions, the General Counsel could elect to process an unfair labor practice charge, while in the process seeking to overturn your policy and potentially impose other sanctions.  Accordingly, it is critical to ensure that your social media policy clearly establishes that it does not restrict these types of activities. The General Counsel’s memorandum does provide some guidance.

For example, Solomon notes that a policy is more likely to be lawful when it includes language reminding employees that the policy does not restrict protected concerted activities. A policy is also more likely to be lawful when it lists specific examples of conduct that it prohibits, and the listed examples do not constitute protected concerted activities. Unfortunately, these types of provisions will not always save an otherwise overbroad policy, and the General Counsel once again has failed to provide a “hard and fast rule” for employers to follow.

Further, although the General Counsel does describe one social media policy that he found to satisfy the NLRA’s requirements, many employers may find this policy insufficient to protect their business goals.  For these reasons, it is recommended that employers thoroughly review their social media policies and, in the process, consider recent decisions by the NLRB and federal courts, in addition to the General Counsel’s memoranda.  Special thanks to Reza Rabiee for providing assistance in writing this article.



Recent Posts




Back to Page