Ever since the National Labor Relations Act (“Act”) was passed in 1935, employees have had the right to engage in “protected concerted activity” (“PCA”) for their mutual aid and protection. These rights apply to employees regardless of whether they are represented by a union in their workplace.

Under President Obama, the NLRB has been very aggressive in further expanding employee rights to engage in PCA. This conclusion is supported by the NLRB’s rulings or official guidelines with regard to social media, employment-at-will and off-duty access policies.

Social Media and Related Policies

No other policy area has received more attention by the NLRB than social media. The attention has arisen because social media is a relatively new technology, at least when compared to the history of the Act. Social media policies also cover a broad range of topics, such as confidential information, harassment, workplace violence, contact with third parties, the media or government agencies, and therefore may involve many different employee rights.

The NLRB’s General Counsel issued three different papers setting forth guidelines concerning what employers may and may not say in social media policies. The length and scope of these guidelines gives a lot of insight into the current NLRB’s view of employee rights.

Policies or Rules Declared Lawful

In those same guidelines, the NLRB’s General Counsel ruled the following rules to be lawful:

• Employees should not post “any opinion or statement as the policy or view of the employer or any individual in that capacity as an employer otherwise on behalf of the employer.”
• Employees should not post “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.”
• Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
• Employees should not discuss information related to the “safety performance of the employer’s systems or components or vehicles” and “secret, confidential or attorney-client privileged information.”
• “Respect all copyright and all other intellectual property laws. For the employer’s protection as well as your own, it is critical to show proper respect for the laws governing copyright, fair use of copyright material owned by others, trademarks and other intellectual property, including the employer’s own copyrights, trademarks and brands.”
• Employees should try to work out concerns over working conditions through internal procedures.
• Use your best judgment and exercise personal responsibility. Take responsibility as stewards of personal information to heart. Display integrity, accountability and respect of core employer values. As a company, we trust – and expect – you to exercise personal responsibility when you participate in social media or other online activities. Remember that there can be consequences for your actions in the social media world – both internally, if your comments violate our policies – and with outside individuals or entities. [It would be unlawful to state: if you are about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it].
• “Harassment, bullying, discrimination or retaliation that is not permissible in the workplace is not permissible between coworkers online, even if it’s done after hours, from home and on home computers.”
• No unauthorized postings: Users may not post anything on the Internet or in the name of the employer or in a manner that can reasonably be attributed to the employer without prior written authorization from the president or the president’s designated agent.
• Employees should expressly state that postings are “my own and do not represent my employer’s positions, strategies, or opinions.”
• Be “respectful and fair and courteous in the posting of comments, complaints, photographs, or videos”…[along with sufficient examples of plainly egregious conduct]…For example, do not post things that “could be viewed as malicious, obscene, threatening, or intimidating” or “harassment or bullying” and avoid “offensive posts meant to intentionally harm someone’s reputation” or posts that can contribute to a hostile work environment on the basis of “race, sex, disability, religion or any other status protected by law or company policy.”
• Employees should “maintain the confidentiality of the employer’s trade secrets;”
• Employees are prohibited from disclosing information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures or other internal business-related communications. [The rule does need to communicate to employees that it does not reach protected communications about working conditions].