Before social media, employers spent little time worrying about their employees’ activities outside of the workplace. While employees have always been able to complain to friends or family members about work, social media enables them to publicize their displeasure to a worldwide audience. With social media readily accessible at just the push of a button, employers are feeling quite vulnerable these days. And that’s why they need to establish social media policies that protect their businesses from the communications of employees.

But when they fashion policies tailored to their business needs, employers must also remember that there’s another audience watching with great interest. The National Labor Relations Board has taken an aggressive stance on social media‑often to protect the rights of employees whose bosses want to silence them.

A Shift in Focus

Congress enacted the National Labor Relations Act in 1935 to protect the rights of workers to bargain collectively and form trade unions. Although the act applies to most private employers, for decades the NLRB focused on collective bargaining issues and union employers. With union representation at historically low levels, the NLRB is suddenly back in the spotlight. Over the past several years, it has transformed itself into the primary federal agency providing guidance on social media issues in the workplace.

Under the direction of former acting general counsel Lafe Solomon, the NLRB began targeting employment policies, and in particular policies regulating employees’ social media use, in the nonunionized workplace. In August 2011, Solomon issued the first of three reports describing social media cases reviewed by his office and providing examples of unlawful employer conduct in relation to employee social media activity. Taking the position that a social media conversation is the equivalent of a workplace discussion, Solomon’s reports—and subsequent board decisions—warned employers that the NLRB would target any social media policy with the tendency to chill the ability of employees to discuss terms and conditions of employment.

According to the NLRB, its authority to regulate social media activity stems from Section 7 and 8(a)(1) of the act. Section 7 provides that “[e]mployees shall have the right to . . . engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1), which is the act’s enforcement provision, expressly prohibits any action with the tendency “to interfere with, restrict, or coerce employees in the exercise of the rights guaranteed in Section 7.” As NLRB Chairman Mark Pearce recently explained, “[m]any view social media as the new water cooler. All we’re doing is applying traditional rules to a new technology.”

General Counsel Griffin’s Report

Earlier this year, current general counsel Richard Griffin, following in Solomon’s footsteps, issued his own detailed report on social media policies. Consistent with the earlier reports, Griffin reiterated his office’s view that a workplace policy is unlawful if employees would reasonably construe it to prohibit communications about working conditions. Although Griffin’s report does not reflect any significant policy change on social media, it provides useful guidance—especially in its discussion of Wendy’s International’s 2014 agreement to revise several of its employment policies in order to settle an unfair labor practice charge.

In Griffin’s view, employers may not prohibit employees from engaging in the following activities, whether in the workplace or on social media: (1) commenting on the business, policies or other employees; (2) taking photos at company events or of company employees; (3) using the company’s logos without approval; (4) disparaging or insulting co-workers; or (5) responding to negative statements without first informing the company.

Griffin does, however, recognize that employers have legitimate reasons to restrict certain behavior, and that it is lawful to prohibit employees from: (1) commenting on the employer’s trade secrets; (2) posting photos or videos of co-workers unless in furtherance of protected activities; (3) commenting negatively about customers; or (4) knowingly making false representations about his or her credentials or work

Although Griffin’s report and prior board precedent establish that there is a fine line between a lawful and unlawful social media policy, the report affirms the NLRB’s recognition that a workplace rule should not be read in isolation, but rather in the context of the employer’s entire policy in deciding whether it unlawfully restricts Section 7 activity.

Recent Decisions

With Griffin’s guidance, the NLRB continues to develop a more nuanced body of law pertaining to employee social media use, including cases that help to define when otherwise protected social media activity is so egregious that it loses that protection. It’s also offered guidance on how employers should effectively revise their social media policies to remedy provisions that might run afoul of the act. For example, in Pier Sixty, a board majority held that an employer unlawfully fired an employee for making the following Facebook statements:

Bob is such a NASTY MOTHER F**KER don’t know how to talk to people!!!!!            F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES             for the             UNION!!!!!!

Although the post included an ad hominem attack on the employee’s supervisor and his family, the majority concluded that the comments were protected by the act because they referenced the employee’s support for the union and were not so egregious as to lose that protection. The majority also noted that, while the language would be inappropriate in most workplaces, vulgarity was common at Pier Sixty, and the company had not consistently disciplined employees for similar language in the past.

But the NLRB doesn’t always come down on the side of employees. In Landry’s Inc., for example, the NLRB sided with the employer and dismissed a complaint alleging that the following portion of the company’s social media policy was unlawful:

While your free time is generally not subject to any restriction by the Company,       the Company urges all employees not to post information regarding the Company,         their jobs, or other employees which could lead to morale issues in the workplace   or detrimentally affect the Company’s business. This can be accomplished by   always thinking before you post, being civil to others and their opinions, and not    posting personal information about others unless you have received their    permission.

Although Griffins’ office argued that employees would reasonably construe the restriction against posting information as prohibiting protected activity, the board emphasized that the restriction must be read in context, and that the second sentence clarified that the policy was focused on the manner of communication and not the subject matter. The board also noted that the policy did not restrict posting “personnel” or “wage-related” information, and recognized that an employer has legitimate reasons to prohibit employees from posting “personal” information, which can lead to morale problems or constitute harassment.

Although the board did not decide this issue, another takeaway from the Landry’s decision is the general counsel’s shifting stance on employee use of company logos and marks. Although the general counsel’s office had previously issued a 2012 advice memorandum finding a similar prohibition to be lawful, it argued in Landry’s that the company’s policy requiring written approval before using company logos or marks ran afoul of the act. The board found it unnecessary to resolve the issue, but employers should pay close attention to any future developments in this area.

Tips for Revising a Social Media Policy

It should come as no surprise that it is a good practice for employers to regularly review their social media policies to ensure they are tailored to the needs of the business and comply with any new legal developments. Employers should also inform their employees of any changes to limit the risk of an unfair labor practice charge over a policy that is no longer in effect.

In Boch Imports Inc., a board majority concluded that the company committed an unfair labor practice because its 2010 social media policy required employees to identify themselves when posting about the company and prohibited using company logos. Even though the company argued that it had remedied any unlawful conduct by implementing a revised policy in May 2013 with the assistance of the NLRB regional office, the majority disagreed.

Acknowledging that the 2010 policy had not been in effect for a number of months at the time of its decision, the majority nonetheless held that the company violated the act because its attempt to repudiate the earlier policy was ineffective. According to the majority, rescinding an unlawful policy without explicitly advising employees that the old policy was unlawful and no longer in effect was insufficient to remedy the unfair labor practice.

Takeaways for Employers

Under GC Griffin, the NLRB continues to focus on social media and has issued a growing a number of decisions relating to social media employment actions and social media policies. Given the breadth of the act’s enforcement provisions—and the NLRB’s interpretation of those provisions—employers should regularly evaluate their policies to ensure that employees will not reasonably construe them as prohibiting protected activity.

Employers should also take care to provide sufficient notice if an existing policy has been revised or is no longer in effect. In finding that Boch Imports failed to effectively repudiate its 2010 policy, the majority emphasized that “merely revising the unlawful rules does not remedy the unfair labor practices at issue, absent notice to the affected employees that the violations occurred and that they will not be repeated.” By notifying its employees if a policy is changed, an employer can ensure that its employees are aware of the company’s expectations and also limit the likelihood of a future unfair labor practice charge.

Reprinted with permission from the August 31, 2015 edition of Corporate Counsel © 2015 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.