NLRB Clarifies Restrictions on Social Media Use, Confidentiality, and Employee Conduct

On June 14, 2019, the National Labor Relations Board (NLRB) released an Advice Memorandum in Coastal Industries, Inc. dba Coastal Shower Doors issued on August 30, 2018. The Board applied the 3-tiered Boeing standard to several employer policies. Specifically, Category 1 policies are lawful; Category 2 policies require individual scrutiny; and Category 3 policies are unlawful. The following is a summary of key portions of the NLRB’s review of confidentiality, conduct, and social media policies.

• A ban on “rude, discourteous or unbusinesslike behavior; creating a disturbance on Company premises or creating discord with clients or fellow employees” was identified as a lawful Category 1 policy. Employers may require harmonious relationships and civility in the workplace.
• A ban on “un-business-like” behavior off-duty/off-premises is a lawful Category 2 policy, because employees would likely understand it to prohibit off-duty bad behavior that affects the employer’s business reputation or workplace. Interestingly, the Board said that employers have an “interest in ensuring that off-duty social dynamics and off-duty recreation do not cause trouble in the workplace or render employees unfit to work.”
• A general ban on disclosure of confidential Company information is overbroad where “confidential information” is not narrowly defined. Even adding a statement that the policy is not intended to violate employees’ NLRA rights is not sufficient where it is unclear that employees have the right to discuss wages or working conditions.
• A ban on using Company electronic assets to access social media accounts is permitted. Specifically, the Board’s Purple Communications rule that employees have the right to access the employer’s email system in the course of work to engage in protected communications during nonworking time does not extend to social media accounts.
• A ban on posting derogatory information about the Company on social media is an unlawful Category 2 policy, because it infringes on employees’ NLRA rights to engage in concerted criticism of an employer’s employment and compensation practices. However, this type of restriction can be limited to an employer’s products or services. Additionally, requiring employees to take their grievances to the employer instead of posting on social media violates the NLRA because it “tends to inhibit employees from banding together.” Having an NLRA disclaimer does not save either of these issues.
• Employees are permitted to use their personal cell phones for personal use during nonworking times (e.g., rest and lunch periods). A ban on using personal phones during “working hours” is inconsistent with that rule because it is too broad.

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