Walmart represents many things to many people. For Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board, it represents the perfect social media policy. On May 30, 2012, the NLRB released the third of Solomon's reports on social media and federal labor relations law (read about the first two here and here).
This report focused on seven cases that the Board pursued against employers for allegedly violating these laws. In six of them, Solomon "concluded that at least some of the provisions in the employers’ policies and rules are overbroad and thus unlawful under the National Labor Relations Act." In the last, however--the Walmart case--Solomon found the entire policy lawful, and even attached the entire policy to his report as a model.
It's notable that that the provisions Solomon found unlawful in these first six policies include some of the most common, and common-sense, provisions in all corporate social media policies. They include provisions on:
- prohibiting the release of confidential information of the employer or co-workers;
- treating co-workers with respect;
- respecting the privacy of others;
- commenting on legal matters;
- using a friendly tone;
- exercising personal responsibility;
- reporting unsolicited communications;
- contact with the government or media.
As to each of these provisions, Solomon identified the same fault: as written, the provisions were unlawfully overbroad, because an employee could interpret them as limiting their ability to critically discuss workplace conditions and coordinate responses to those conditions with co-workers.
Indeed, after reading the third one of these reports, the theme starts to get a little repetitive: "be careful not to deter your employees from engaging in protected concerted activity." One would be forgiven for thinking, "Ok, we get it already." It's also helpful to remember that these reports are the non-binding advice of one government agency that is implementing a policy distinct from previous administrations, and that may be modified again by future administrations. There have still been very few judicial rulings on these subjects, and even those have been non-precedential.
Nevertheless, to minimize legal exposure going forward, it's instructive to review the policy that Solomon's NLRB finds entirely lawful. What Solomon especially liked about Walmart's policy is that it contains tangible examples of what is and isn't permissible. That helped employees understand that the prohibitions did not extend to protected concerted activity (a.k.a. "Section 7 activity"):
it provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity. For instance, the Employer’s rule prohibits “inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” We found this rule lawful since it prohibits plainly egregious conduct, such as discrimination and threats of violence, and there is no evidence that the Employer has used the rule to discipline Section 7 activity.
Similarly, we found lawful the portion of the Employer’s social media policy entitled “Be Respectful.” In certain contexts, the rule’s exhortation to be respectful and “fair and courteous” in the posting of comments, complaints, photographs, or videos, could be overly broad. The rule, however, provides sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct.
To review Walmart's policy in full, go to the last three pages in Solomon's report.
