In 2011, the National Labor Relations Board (NLRB) made social media an enforcement priority. Their primary target was employers who terminated employees for engaging in what the NLRB deemed concerted activity, which is protected by the National Labor Relations Act (NLRA). The NLRB also took aim at supposedly “overly broad” employer social media policies.
In an effort to keep everyone abreast of the situation, the NLRB general counsel’s office released a memorandum with guidance (http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743) regarding the agency’s social media cases. If you need a refresher, you can check out a quick summary of the protected activity here, and the overly broad social media policies here.
In response, many employer’s started including disclaimers or “saving clauses” in their social media policies. The disclaimer would state that the social media policy will not be interpreted or applied so as to prohibit NLRA-protected concerted activity. Well, guess what? The NLRB just issued a second social media memo (http://mynlrb.nlrb.gov/link/document.aspx/09031d45807d6567). One of the cases in the memo involved a policy with an NLRA disclaimer. To the dismay of employers everywhere, the memo concluded that the disclaimer was ineffective and the policy in question still violated the NLRA. That policy limited employee social media discussion to “appropriate” discussion of the terms and conditions of employment. Although the policy also included an NLRA disclaimer, the memo concluded, “that an employee could not reasonably be expected to know that [the disclaimer] encompasses discussions the Employer deems ‘inappropriate.’”
This is similar to advice from the NLRB GC’s office last year (http://mynlrb.nlrb.gov/link/document.aspx/09031d45806bab9d) that another disclaimer or “savings clause” was ineffective. That savings clause stated that the underlying policy would not be construed as a limitation upon NLRA-protected rights. The advice memo found the clause insufficient, “ because employees may very well not know what conduct is protected [and] the general savings clause did not provide the employees any guidance as to what activities would be protected by the NLRA and therefore not restricted by the social media policy.”
So, are NLRA disclaimers dead? I’m not ready to throw in the towel just yet! There are two ways employers can avoid the defects noted in the NLRB guidance:
1. Don’t just exclude “NLRA-protected activity” in your disclaimer and expect your employees to know what that means. Give them examples of the specific activities protected by the NLRA; and
2. Don’t create ambiguities about whether those specific activities are really protected. I.e. don’t tell your employees that they may engage in “appropriate” concerted activity with no clue as to what’s appropriate and what’s inappropriate.
Will that be enough? Only time . . . or maybe a third NLRB social media memo . . . will tell.
Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.