By Lawrence E. Dubé
National Labor Relations Board Acting General Counsel Lafe E. Solomon May 30
issued a new report on
employees' social media use, describing six corporate policies that he alleged
interfered with the rights of workers under the National Labor Relations Act,
and one revised policy statement that he found was lawful.
In Memorandum OM 12-59, Solomon's third report on social media in less than a
year, the acting general counsel continued to take the position that overbroad
company rules and policy statements violate the NLRA where employees would
reasonably interpret them as limiting their exercise of rights guaranteed by the
federal labor law.
But Solomon found that Wal-Mart Stores Inc. avoided an unfair labor practice
when it adopted a revised social media policy for its U.S. employees that is
both unambiguous and lawful.
The general counsel's office investigates unfair labor practice charges and
decides whether to issue complaints to be considered by NLRB administrative law
judges and the board.
report (Memorandum OM 11-74) on the use of social media was issued in August
2011, and summarized actions of the acting general counsel in 14 cases over a
The second report
(Memorandum OM 12-31), issued Jan. 24, offered an update on 14 more cases.
Solomon wrote in the second report that “these issues and their treatment by the
NLRB continue to be a 'hot topic' among practitioners, human resource
professionals, the media, and the public” (30 HRR 91, 1/30/12).
In the new report, Solomon repeated his earlier guidance that an employer
violates Section 8(a)(1) of the NLRA by interfering with, restraining, or
coercing employees in the exercise of their rights under Section 7 of the act to
engage in union activity or protected concerted activity for their mutual aid or
In the first case (Target Corp., No. 29-CA-030713) addressed in
Solomon's new report, the employer had an employee handbook section titled
“Communicating confidential information.” The handbook made no mention of unions
or Section 7 activity, but the acting general counsel said portions of the
language were unlawful.
The handbook told employees to “[m]ake sure someone needs to know” before
sharing confidential information with co-workers. Solomon said the language was
overbroad. “Employees would construe these provisions as prohibiting them from
discussing information regarding their terms and conditions of employment,” the
acting general counsel said.
The employer's handbook also warned employees, “We're serious about the
appropriate use, storage and communication of confidential information,” and
cautioned that employees could be disciplined, discharged or “subject to legal
action, including criminal prosecution” for violating the employer's policy or
failing to report policy breaches.
Solomon said the sanctions “would be construed as requiring employees to
report a breach of the rules governing the communication of confidential
information set forth above.” He added that “[s]ince we found those rules
unlawful, the reporting requirement is likewise unlawful.”
In General Motors LLC (No. 7-CA-53570), the employer maintained a
social media policy that told employees any online postings by employees should
be “completely accurate and not misleading” and should not reveal “non-public
company information” on any “public site.”
Nonpublic information was defined to include information “related to” the
company's financial performance, as well as personal information about
employees. The policy also advised employees that if they were in doubt about
posting information, they should not take action. Instead, employees were
advised to check with corporate communications or legal representatives “to see
if it's a good idea.”
The acting general counsel said the board has prohibited requiring employees
to secure permission before exercising Section 7 rights, and he concluded
portions of the GM policy were unlawful.
The same day Solomon's memorandum was issued, an NLRB administrative law
judge issued a decision sustaining
the acting general counsel's allegation that GM had violated Section 8(a)(1) of
In several other cases, Solomon found that employer attempts to police or
moderate the tone or content of online communications violated the NLRA.
In McKesson Corp. (No. 6-CA-66504), an employer policy instructed
employees, “Don't pick fights” and reminded employees to communicate in a
“professional tone” without making “objectionable or inflammatory” comments.
Solomon concluded that this provision and others were unlawful, observing
that “[d]iscussions about working conditions or unionism have the potential to
become just as heated or controversial as discussions about politics and
religion.” Without further clarification of what is “objectionable or
inflammatory,” he said, “employees would reasonably construe this rule to
prohibit robust but protected discussions about working conditions or
In Clearwater Paper Corp. (No. 19-CA-64418), the acting general
counsel found that maintaining a rule prohibiting employees from posting
information about an employer that was “material non-public information” or was
“confidential or proprietary” interfered with employees' Section 7 rights.
The first restriction, Solomon said, was so vague that employees would
reasonably understand it to bar disclosures concerning their working conditions.
Similarly, he said, a prohibition on disclosure of “confidential” information,
unless clarified, would be understood to cover employees' employment
Solomon found, however, that Clearwater's prohibition on “harassment,
bullying, discrimination, or retaliation that would not be permissible in the
workplace … even if it is done after hours, from home and on home computers,”
did not violate the NLRA because it “would not reasonably be construed to apply
to Section 7 activity” and because the rule gave employees an illustrative list
of prohibited acts, such as bullying and discrimination.
In Us Helping Us (No. 5-CA-36595), Solomon found that an employer
policy requiring employees to report to management any “unsolicited or
inappropriate electronic communications” they received violated the act.
Employees would reasonably understand the rule to restrain their exercise of a
right “to communicate with their fellow employees and third parties, such as a
union, regarding terms and conditions of employment,” he wrote.
But Solomon said the employer lawfully maintained a restriction on internet
postings that required employees to secure company approval for any statements
made in the employer's name “or in a manner that could reasonably be attributed”
to the employer.
In the last of the cases in which Solomon found employer unfair labor
practices, DISH Network (No. 16-CA-66142), he said the employer violated
Section 8(a)(1) by maintaining a rule that prohibited “disparaging or
defamatory” comments, as well as a lengthy policy that restricted employees from
speaking to press or media representatives without prior authorization.
“While an employer has a legitimate need to control the release of certain
information regarding its business, this rule goes too far,” Solomon wrote.
“Employees have a protected right to seek help from third parties regarding
their working conditions,” he said, including “going to the press, blogging,
speaking at a union rally, etc.”
Stating “Section 7 protects employee communications to the public that are
part of and related to an ongoing labor dispute,” the acting general counsel
concluded that an employer policy barring or limiting employee access to the
media “is therefore unlawfully overbroad.”
But Solomon found that Wal-Mart recently developed a two-page social media
policy that gives employees clear notice of prohibited behavior “without
burdening protected communications about terms and conditions of
According to a May 30 Division of Advice memorandum in Walmart (No.
11-CA-67171) that was posted on NLRB's website the same day as Solomon's report,
an unnamed former employee filed an unfair labor practice charging that the
company promulgated a July 2010 social media policy that violated the NLRA. The
former employee also alleged the company fired him illegally because of comments
he posted on his Facebook page.
But Wal-Mart adopted a revised policy after the charge was filed, and the
acting general counsel concluded the revision is lawful. Finding the
substitution of the lawful rule made it unnecessary to resolve the legality of
the Wal-Mart policy that preceded it, the acting general counsel also rejected
the employee's discharge claim since his online comments were not work-related
or protected under the NLRA.
Wal-Mart's two-page policy, bearing a notation that it was updated May 4,
applies to all “associates” of Wal-Mart Stores Inc. and subsidiaries in the
United States. The policy forbids “inappropriate postings” including
“discriminatory remarks, harassment, and threats of violence or similar
inappropriate or unlawful conduct.” Violations, the policy warns, may result in
discipline or discharge of an employee.
Employees are instructed by the Wal-Mart policy to “be fair and courteous” to
fellow employees and others and are told they “are more likely” to resolve
work-related complaints by speaking directly to co-workers or using a Wal-Mart
open-door policy “than by posting complaints to a social media outlet.”
The policy prohibits communications that “reasonably could be viewed as
malicious, obscene, threatening, or intimidating” as well as those that
“disparage” individuals, including employees, “or that might constitute
harassment or bullying.”
In his social media report, Solomon said Wal-Mart's revised policy is not
ambiguous because “it provides sufficient examples of prohibited conduct so
that, in context, employees would not reasonably read the rules to prohibit
Section 7 activity.”
Citing the company's prohibition of “inappropriate” postings and the
company's identification of “discriminatory remarks, harassment, and threats of
violence or similar inappropriate or unlawful conduct” as examples, Solomon said
maintaining such language does not violate Section 8(a)(1) of the act.
Solomon said the company's exhortation for employees to be “fair and
courteous” when posting comments or other online material “could be overly
broad,” but he concluded that the company provided “sufficient examples of
plainly egregious conduct so that employees would not reasonably construe the
rule to prohibit Section 7 conduct.”
The acting general counsel also concluded that the retailer's revised social
media policy maintains the confidentiality of trade secrets and other
confidential information without violating the NLRA.
Text of Memorandum OM 12-59 is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8utm4y.
The advice memorandum is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8utm6f.
The ALJ ruling in the GM case is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-8utq8c.