NLRB Rules Broader Restrictions in Social Media Policies are Lawful
Employers have long sought to limit adverse comments about the employer, its management, and coworkers, with limitations in handbook and social media policies. Many of these restrictions have been successfully challenged by employees or unions on the grounds they restrict legitimate "protected or concerted" activities under the National Labor Relations Act (NLRA). In other words, the Labor Act grants workers broad rights to criticize their employer.
A decision of the National Labor Relations Board (NLRB) on August 7, 2020, gives an employer broader rights to protects its reputation. Bemis Company, No. 18-CA-20267. The decision overturning an administrative law judge's ruling to the contrary, provides helpful guidance for employers that want to lawfully limit employee speech on online platforms. That policy stated:
Employees are expected to be respectful and professional when using social media tools. With the rise of websites like Facebook, MySpace, and LinkedIn, the way in which employees can communicate internally and externally continues to evolve. We expect our employees to exercise judgment in their communications relating to Bemis so as to effectively safeguard the reputation and interests of Bemis.
* Communicate in a respectful and professional manner;
* Avoid disclosing proprietary information; and
Each employee is responsible for respecting the rights of their co-workers and conduct themselves in a manner that does not harass, disrupt, or interfere with another person's work performance or in a manner that does not create an intimidating, offensive, or hostile work environment.
In addressing the above social media policy, the Board found that in analyzing the lawfulness of a work rule, particular phrases should not be read in isolation. The Board went on to find that an objectively reasonable employee would understand that the first paragraph of the rule sets out a general expectation that is more fully defined by the explanatory language that follows: "When read in its entirety, Bemis makes clear that, to safeguard the reputation and interest of the company, employees referring to the company on social media must be respectful and professional, must not disclose proprietary information, must respect their co-workers, and must not harass, disrupt, or interfere with another person's work or create an intimidating, offensive, or hostile work environment." The Board went on to find that the rule would not interfere with the exercise of an employee's rights, and thus is entirely lawful. The Board also upheld the administrative law judges ruling that the guidelines in the employer's employee handbook rule was entirely lawful as follows: "Do not make or publish false, vicious or malicious statements concerning any employee, supervisor, the company or its products."