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Seyferth Blumenthal & Harris > Uncategorized > NLRB Advice Memo Says Employers Cannot Ban Employees from Disparaging Them on Social Media

NLRB Advice Memo Says Employers Cannot Ban Employees from Disparaging Them on Social Media

By DANIEL O. RAMÓN

On June 14, 2019, the National Labor Relations Board’s General Counsel released a series of advice memoranda, one of which determined whether a company’s ban on “posting derogatory information” on social media sites unlawfully restricted employees’ right to engage in protected concerted conduct under Section 7 of the National Labor Relations Act (NLRA).

The Advice Memorandum in Coastal Shower Doors (Case No. 12-CA-194162), issued August 30, 2018 (but released last month), evaluated various provisions of the employer’s employee handbook, including several rules encompassed by its social media policy. One such rule stated, “Employees should refrain from posting derogatory information about the Company on any [social media] sites and proceed with any grievances or complaints through the normal channels.” A second rule stated that “Employees may not post any statements, photographs, video, or audio that reasonably could be viewed as disparaging to employees.” The Memorandum concluded that the first rule was “unlawfully overbroad,” but the second rule was lawful.

In analysis, the NLRB determined that a general rule against disparaging the company on social media, “absent limiting context or language,” would cause employees to refrain from publicly criticizing employment problems on social media. The NLRB stated that such criticism is often the “seed” that becomes protected concerted activity under the NLRA. Because the rule at issue was an “absolute ban” on social media disparagement of the employer, and was not limited to prohibiting disparagement of the employer’s products or services, the rule should be viewed as unlawful.

In contrast, the NLRB noted that employers may maintain rules demanding civility from its employees, which includes not disparaging fellow employees. As described in the Memorandum, there is a distinction between “rules restricting what employees can say about their coworkers (i.e., disparaging other employees) … and rules restricting what employees can say about their employer (i.e., disparaging the owners).” As such, the NLRB concluded the second rule was lawful.

While the NLRB enforces and interprets federal labor relations law, all employers should ensure their handbooks and policies are up to date with the latest laws and regulations.