NLRB Upholds Lawful Social Media Policy

Are you an employer grappling with how to lawfully regulate your employees' social media activity?

If so, you are not alone.

Over the last few years, the National Labor Relations Board ("NLRB") has issued a series of decisions and guidance memos explaining what constitutes a lawful social media policy.  Unfortunately, the effect has been to further confuse employers because the NLRB has often focused on what constitutes unlawful policies.  For example, the NLRB has said that it is unlawful for employers to discipline employees for certain behavior in cyberspace, which is normally not tolerated in the physical workplace (ie: calling his/her boss an expletive on Facebook).  Now, however, a recent NLRB decision appears to provide some guidance to employers on the type of social media policy provisions that it considers lawful.

In April, the NLRB upheld the social media policy (the “Policy”) of Landry’s, a company that operates nationwide restaurants such as Bubba Gump Shrimp Co.  The company included the Policy in its employee handbook.  Upon the termination of an employee, the NLRB’s regional office found that the Policy violated the National Labor Relations Act ("NLRA"), which protects employees with regards to wages, hours, and other terms and conditions of employment.  On appeal, however, this determination was reversed, and the Policy was held to be lawful.

Among the Policy’s provisions were the following:

• A requirement that employees seek approval from the Vice President of Marketing prior to posting on social media sites for work purposes;
• A requirement that employees include a disclaimer with each personal post, which explains that their personal views do not necessarily reflect the views of Landry’s;
• A recommendation “not to post information . . . which could lead to morale issues in the workplace or detrimentally affect the Company’s business”; and, 
• A prohibition on using any words, logos, or other marks that would infringe upon the trademark, service mark, or other intellectual property rights of Landry’s, unless the employee receives prior approval from the Vice President of Marketing.
  

In upholding the Policy, the NLRB relied on the decision of an administrative law judge (the “ALJ”), who noted that the Policy would not be construed to violate the NLRA.  The ALJ explained that because the Policy contained language discussing “morale” and encouraging employees to be “civil to others and their opinions,” it would not be construed as restricting an employee’s NLRA rights.  The ALJ noted that the Policy does not specifically prohibit employees from discussing personnel information, wage-related information or information about workplace complaints.  The ALJ also declined to strike down the provision prohibiting the use of any words, logos, or marks that might infringe on Landry’s intellectual property rights, explaining that the Policy left it up to a “conscientious employee” to determine whether their use of such items was related to NLRA-protected activity.

This NLRB decision offers the following insights for employers when drafting social media policies:

• Don’t prohibit employees from posting about wages, personnel matters, or workplace complaints;
• Don’t implement an outright ban on the use of the company’s logos or trademarks;
• Do encourage civility and respect for others; and,
• Do encourage employees not to use social media for harassment purposes.
  

If you have questions about the NLRB’s decision or need assistance with drafting a social media policy, please contact our office at 814-870-7600 or complete this form on our website.