The folks at Fisher & Phillips (Atlanta-based employment law firm) sent me this link to a pretty formidable write-up by D. Albert Brannen (a partner there), spelling out just how much you need to keep in mind now under the more aggressive National Labor Relations Board.
“Under President Obama,” he writes, “the NLRB has been very aggressive in further expanding employee rights to engage in [protected concerted activity through its] rulings or official guidelines with regard to social media, employment-at-will and off-duty access policies. [Of those], no other policy area has received more attention by the NLRB than social media.”
What really impressed me were Brannen’s lists of rules or policies now deemed unlawful and lawful, based on the last of the NLRB General Counsel’s guidelines on social media, issued May 30. He lists 23 — repeat, 23 — under the unlawful category. Here’s just a sampling:
- Employees should not release confidential guest, team member or company information.
- Employees should not share confidential information with coworkers unless they need the information to do their job.
- Employees should not have discussions regarding confidential information in the break room, at home, or in open public places.
- Employees should not “reveal non-public company information on any public sites.”
- Employees should not post photos, music, videos and personal information of others without obtaining the owner’s permission and must ensure that the content can be legally shared.
- Employees should not use the employer’s logos and trademarks for non-commercial purposes.
There are 13 social-media policies or rules declared lawful. Again, just a sampling:
- 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.”
I’d memorize these if I were you.
For the record, here’s my latest blog post on the NLRB’s first social-media ruling (against Costco), which contains links to the rules and guidelines — and purposes behind them — issued thus far by NLRB’s Acting General Counsel Lafe Solomon pertaining to social media in the workplace and social-media policies. For a full explanation from the NLRB as to all of its guidances and rules, start on its home page and search or drill down to what you’re after.
Also, for the record, Brannen includes helpful advice about employment-at-will and off-duty access policies as well.
As he cautions in his conclusion:
By its nature, the NLRB is prone to what experts call ‘policy oscillations’ where its interpretations of the law may change with the political party in power at any given time. To some degree, these fluctuations can be expected. However, the current NLRB seems to have taken a dramatic turn in the expansive way it views employee rights. Employers should be aware of these recent developments and should review their work rules and policies to make sure that they still comply with the law as viewed by the current NLRB. Specifically, employers should revise their social-media, employment-at-will and no-access polices as soon as possible.