NLRB social memo highlights Walmart policy as example of compliant policy
National Labor Relations Board releases 3rd social media memo, including a sample policy from a major retailer that is in compliance with current NLRB interpretation of social media practices that intend to enforce. You can find the memo here. More to come later after digesting the rather copious and lengthy document.
Here is the text from the document about the compliant policy, which is from Walmart.
Employer’s Entire Revised Social Media Policy–With Examples of Prohibited Conduct–Is Lawful
In this case, we concluded that the Employer’s entire revised social media policy, as attached in full, is lawful. We thus found it unnecessary to rule on the Employer’s social media policy that was initially alleged to be unlawful.
As explained above, rules that are ambiguous as to their application to Section 7 activity and that contain no limiting language or context to clarify that the rules do not restrict Section 7 rights are unlawful. In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.
Applying these principles, we concluded that the Employer’s revised social media 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.
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.
For instance, the rule counsels employees to avoid posts that “could be viewed as malicious, obscene, threatening or intimidating.” It further explains that prohibited “harassment or bullying” would include “offensive posts meant to intentionally harm someone’s reputation” or “posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”
The Employer has a legitimate basis to prohibit such workplace communications, and has done so without burdening protected communications about terms and conditions of employment.
We also found that the Employer’s rule requiring employees to maintain the confidentiality of the Employer’s trade secrets and private and confidential information is not unlawful. Employees have no protected right to disclose trade secrets.
Moreover, the Employer’s rule provides sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes,
products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.
[Walmart, Case 11-CA-067171]