Earlier this year, Richard Griffen, the current general counsel of NLRB, issued a report on employee handbook rules and social media policies. What is NLRB’s position? That social media posts and conversations are equivalent to workplace discussions. This guidance raises several key issues of interest and relevance for corporate legal and human resources teams.

Six Key Topics for Lawful Employee Handbooks

Griffen outlines and focuses on six key issues regarding employee handbooks and social media in the National Labor Relations Act (NLRA):[1]

  1. Confidentiality
  2. Professionalism
  3. Anti-harassment
  4. Trademark
  5. Photography/Recording
  6. Media Contact

1.  Confidentiality: A Tricky Issue, In Some Cases

It may seem obvious to most, but discussions of terms and conditions of employment, such as wages, hours, or complaints, violate employee confidentiality policies. Much trickier is understanding the broader rules that encompass employee or personal information, “without further clarification.” However, broad prohibitions on disclosing confidential information are lawful as long as they do not reference information regarding employees or a term or condition of employment.

Examples of Unlawful Confidentiality Rules

  • “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
  • “You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy).”
  •  “Do not disclose details about the employer.”

Examples of Lawful Confidentiality Rules

  • “No unauthorized disclosure of business ‘secrets’ or other confidential information.”
  • “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
  • “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”

2.  Professionalism: Where to Draw the Line Between Criticizing and Protesting

Employees have the right under Section 7 to criticize or protest their employer’s labor policies or treatment of employees, even if they’re false or defamatory.  Rules that ban false statements will be unlawful unless it specifies that “only maliciously false statements are prohibited.” A policy that requires employees to be civil and professional to coworkers, competitors, or clients, but not the employer or management, will generally be lawful as this kind of conduct is a legitimate business interest. Nevertheless, rules that prohibit employee insubordination have been found lawful, however, those rules must only relate to insubordination and not other conduct.

Examples of Unlawful Professionalism Rules

  • “[B]e respectful to the company, other employees, customers, partners, and competitors.”
  • “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”

 Examples of Lawful Professional Rules

  • Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
  • “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in” discipline.

3.  Anti-Harassment: Beware of Rules That Are Overly Broad

Unless you’re co-workers find it insulting or derogatory, then it probably isn’t harassment. Employees have the right under the Act to “argue and debate with each other about unions, management and their terms and conditions of employment.” The Supreme Court has held that “intemperate, abusive and inaccurate statements” will not lose protection.[2]  While an employer does have a legitimate and substantial interest in maintaining a harassment-free environment, rules cannot be overly broad as to be read as prohibiting “vigorous debate or intemperate comments.”

Examples of Unlawful Anti-Harassment Rules

  • “[D]on’t pick fights online.”
  • “Do not send or post unwanted, offensive, or inappropriate e-mails or comments.”
  • “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail or posted online.” 

Examples of Lawful Anti-Harassment Rules

  • “No harassment of employees, patients or facility visitors.”
  • “No use of racial slurs, derogatory comments, or insults.”

4.  Trademarks: Employees Can Use Yours – Even on a Picket Line

The Act prevents employers from prohibiting employee fair use of logos, copyrights or trademarks. Employers do have an interest in protecting their intellectual property, but employees do have the right to use a company’s name and logo on picket signs, leaflets and other protest material. A broad ban on the use is unlawful as a non-commercial use of a name, logo or other trademark by an employee does not implicate and employer’s proprietary interests.

Examples of Unlawful Trademark Rules

  • “Do not use any Company logos, trademarks, graphics or advertising materials in social media.”
  • “Company logos and trademarks may not be used without written consent.”

Example of Lawful Trademark Rules

  • “Respect all copyright and other intellectual property laws. For [the Employer’s] protection as well as your own, it is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”

5.  Photography/Recording: Keep the Scope Narrow and Focused

Employees are permitted to use their own devices to take photos and recordings in “furtherance of their protected concerted activity.” Rules placing a complete ban on use or possession of cameras or recording devices are unlawful where they prohibit use on non-work time. Rules regulating recording or photography will be permitted if the scope is limited.

Examples of Unlawful Photography/Recording Rules

  • “Taking unauthorized pictures or video on company property is prohibited.”
  • “Possession of personal electronic equipment on employer property is prohibited.” 
  • “Employees cannot use personal cellular devices while on duty.” 

Example of Lawful Photography/Recording Rules

  • “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.”

6.  Media Contact: Employees Can Communicate Directly on Some Topics

Employees have the right to communicate to the media, governmental agencies and other third parties about wages, benefits and other conditions of employment. While employers can designate an individual to make official statements, rules cannot restrict employees from speaking to the media or third parties on their own behalf.

Examples of Unlawful Media Contact Rules

  • “[A]ll inquiries from the media must be referred to the Director of Operations in the corporate office, no exceptions.”
  • “If you are contacted by any government agency you should contact the Law Department immediately for assistance.”

 Example of Lawful Media Contact Rules

  • “The company strives to anticipate and manage crisis situations in order to reduce disruption to our employees and to maintain our reputation as a high quality company. To best serve these objectives, the company will respond to the news media in a timely and professional manner only through the designated spokespersons.”

So if you’re a member of your company’s legal or human resources teams, consider scheduling a meeting to review your current employee handbook to ensure your rules are meeting and continue to meet your legal obligations.

[2] Linn v. United Plant Guards, 383 U.S. 53 (1966)

Pre-transaction due diligence: is a Google search enough?