June 06, 2012, 12:09 PM — It is illegal for U.S. employers to issue broad-based prohibitions of employee discussions about their workplaces on social media, according to a new memo from the acting general counsel of the U.S. National Labor Relations Board (NLRB).
General Counsel Lafe Solomon, in a May 30 memo, examined social media policies at seven employers, including General Motors and Target Brands, and found six of the polices overly broad.
Solomon, in his third social-media memo since August, found that the six policies have provisions that violate Section 7 of the National Labor Relations Act, which allows employees to join labor unions and to discuss working conditions with each other. Solomon's opinions say employers cannot prohibit employees from discussing working conditions, including salary, with coworkers on social media.
Some social media restrictions are legal, but several others in the example policies were not, Solomon wrote. A policy prohibiting employees from releasing "confidential guest, team member and company information" on social media was overly broad because it could be interpreted to mean that employees can't discuss the employment conditions of coworkers, he wrote. A prohibition on discussing confidential information in public was illegal for the same reason, he wrote.
Another policy's advice that employees should "think carefully" about friending coworkers on social networking sites discourages discussions of work conditions on those sites, Solomon wrote. A prohibition on employees posting workplace photos and video or the company logo was also overly broad and could include a ban on photos and video of picket lines with signs containing the logo, he wrote.
Although Section 7 addresses labor unions in part, the law applies to all U.S. employers, not just unionized ones. The series of memos appear to serve notice to U.S. companies that the Section 7 rules exist, said Marcia Goodman, a partner specializing in employment law with the Mayer Brown law firm in Chicago.
"I think that the NLRB was trying to add to their own relevance, because most people -- most employers even -- think of the NLRB as it only matters if you have a union," she said. "Fewer and fewer companies have unions, and therefore, they feel a little ignored and dusty."
Employers have asked for guidance on social media policies, said Nancy Cleeland, director of public affairs for the NLRB.
Companies should examine the three general counsel memos on social media and "act accordingly," Cleeland said in an email. In the latest memo, Solomon includes the social-media policy of Wal-Mart Stores, which he finds legal.