NLRB’S RECENT
SCRUTINY OF SOCIAL
MEDIA AND OTHER
PERSONNEL POLICIES
John A. DiNome, Esquire
Sherri A. Affrunti, Esquire
Joel S. Barras, Esquire
Labor & Employment Group
What is Social Media?
Defined broadly as ….
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“…activities, practices and
behaviors among communities of
people who gather online to share
information, knowledge, and
opinions using conversational
media.”
Essentially, it is any tool or
service that uses the Internet to
facilitate conversations.
Social Networking is Here to Stay
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A 2009 Deloitte study revealed that 23% of employees visit
social networking sites 1-4 times per week; 10% admitting that
some access is for personal reasons
 In the same study:
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74% of employees agreed it is easy to damage a company
reputation on social media
23% of employees said they do not consider the ethical
consequences of posting comments, photos or videos online
72% of executives revealed that their company does not have
any formal policies governing social networking use
 Deloitte LLP, 2009 Ethics & Workplace Survey
Results, Social Networking and Reputational Risk in
the Workplace
Facebook boasted 5 million + members in 2005. In December
2009, reports indicated upwards of 350 million active
Facebook members. In 2013, membership is projected to
balloon to 1 billion.
But Feelings Remain Mixed on
Appropriate Use of Social Media
 . . . there is a persistent gap between
employee and employer views on the
appropriate use of and access to social
media sites . . .”

Sharon Allen—Chairman, Deloitte LLP
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32% of employees fear that use of social networking sites will
negatively affect their careers.
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62% of employees prefer not to be “friends” with their managers
on social networking sites.

40% of executives say that their companies block access to sites.
 Deloitte LLP, 2010 Ethics & Workplace Survey
Results, Trust in the Workplace.
Social Media Technology Has a
Significant Impact on the Workplace
 Employees may upload information that an employer
believes is inconsistent with its image or mission
 Employees may participate in a variety of online groups to
discuss work-related issues outside of employer oversight
 Employees may inadvertently or intentionally disclose
confidential business information
 Employees may disparage your customers, consultants or
vendors
Other Concerns Surrounding
Employee Use of Social Media
 Violation of copyright and other laws
 Real and perceived conflicts of interest
 Violation of FTC Rules on Use of Endorsements
 LinkedIn Endorsements (Good and Bad)
 Violations of standards of conduct (Harassment)
 Loss in productivity
 Protected concerted activity
2012 Survey of the Society for Human
Resources Managers (SHRM) found:
- Overall, 40% of organizations
reported having a formal social
media policy – leaving 60% of
companies reporting to not having a
social media policy yet in place
- Among organizations with a formal social media policy,
the majority of organizations (43%) reported HR is
responsible for creating and enforcing these policies
- Among organizations with a social media policy,
33% indicated taking disciplinary action against an
employee who violated their policy within the last 12
months
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Methodology | A sample of HR professionals was randomly selected from SHRM’s membership database, which included
approximately 250,000 individual members at the time the survey was conducted. The sample was composed of members with the
job function of recruiting/staffing. 532 responses were used, yielding a response rate of 19%. Data were collected December 17,
2010, through February 1, 2011. The margin of error for this poll is +/- 4%. © January 2012. Society for Human Resource
Management
Why Such a HOT Topic?
 Increasing popularity of social media networks
 Increasing accessibility through smart phones & mobile
devices
 Increasing liability concerns
 Increasing realization of many employers that their
policies are significantly behind the technology and the
law, particularly in the face of recent NLRB rulings which
extend to non-unionized employers
Even if It Enrages Your Boss, Social Net
Speech Is Protected. By Stephen Greenhouse
“Many view social media as the new water cooler,” said Mark G.
Pearce, the board’s chairman, noting that federal law has long
protected the right of employees to discuss work-related matters.
“All we’re doing is applying traditional rules to a new technology.”
National Labor Relations Board
(NLRB)
 National Labor Relations Act (NLRA)
 NLRB taking action through…
 Rulemaking
 Administrative decisions
 Litigation
Employee-Friendly Agenda
 Critical social media issues…
 Employer training on NLRA
 “At-will” acknowledgements
 Confidentiality in internal investigations
 Union organization
 Company-related social media posts
 Intellectual property rights
 Disciplining employees
Employee-Friendly Agenda (cont.)
 NLRB focused on…
 Overbroad or restrictive
social media policies
 Discipline or discharge for
social media use
 Unionization through social media
NLRB Acting General Counsel
 Three critical-advice memos issued since
August 2011
 Objectives of the memos
 Limit scope of social media policies
 Protect employee comments on
social media
Examples of
Impermissible Policy Rules
 Blanket prohibitions
 “No disparaging comments about the company
through social media”
 “Do not release confidential information about
the company, its employees, or its clients”
 “Only discuss on a need-to-know basis”
Examples of
Impermissible Policy Rules (cont.)
 Accuracy of communications
 “Comments about the company must be
accurate and not misleading, even if based on
your personal view”
 Guidance from employer
 “When in doubt, do not post on social media.
Checking with the company is a good idea.”
Examples of
Impermissible Policy Rules (cont.)
 Discouraging communications or
requiring reporting of communications
 “Be careful when ‘friending’ coworkers”
 “Address concerns by speaking directly to
coworkers, supervisors, or management
rather than posting on the Internet”
 “Report any inappropriate social media activity”
Examples of
Impermissible Policy Rules (cont.)
 Communications with
government officials or media
 “Notify the company if you are contacted by
any federal, state, or local agency”
 “Notify the company if you are contacted by the
media”
 “Never speak publicly about the company’s
business without prior authorization”
Examples of
Impermissible Policy Rules (cont.)
 Photographs and videos
 “Do not post photos, music, videos, or personal
information without the owner’s permission”
 “Do not post the company’s trademark on
social media sites without its permission”
NLRB’s Social Media Cases
Costco Wholesale Corporation,
358 NLRB No. 106 (Sept. 7, 2012)
 Employer’s policy…
“statements posted electronically … that damage
the Company, defame any individual or damage any
person’s reputation … may be subject to
discipline …”
NLRB’s Social Media Cases (cont.)
Costco Wholesale Corporation,
358 NLRB No. 106 (Sept. 7, 2012)
 ALJ dismissed
 Ensures “civil and decent workplace”
 NLRB reversed
 Prohibits protected concerted activity
NLRB’s Social Media Cases (cont.)
Salon/Spa at Boro, Inc.,
356 NLRB No. 69 (Dec. 30, 2010)
 Policy prohibited “negativity”
 Employer encouraged staff to “exercise
judgment and restraint” in using social media
 Employer warned about disgruntled
employees making disparaging comments
NLRB’s Social Media Cases (cont.)
Salon/Spa at Boro, Inc.,
356 NLRB No. 69 (Dec. 30, 2010)
 NLRB dismissed
 Not a threat of reprisal
 Educational warning of negative impact on
employees’ reputation
 Constitutionally protected speech
NLRB’s Social Media Cases (cont.)
Mashantucket Pequot Gaming Enterprise
d/b/a Foxwoods Resort Casino,
356 NLRB No. 111 (Mar. 17, 2011)
 Employer objected to union election
 Claims of racially “inflammatory appeals” on
Facebook and non-social media outlets
NLRB’s Social Media Cases (cont.)
Mashantucket Pequot Gaming Enterprise
d/b/a Foxwoods Resort Casino,
356 NLRB No. 111 (Mar. 17, 2011)
 NLRB dismissed
 Union statements “not demeaning” or
“inflammatory” toward Native Americans
 Union simply stating facts about policy
NLRB’s Social Media Cases (cont.)
Mashantucket Pequot Gaming Enterprise
d/b/a Foxwoods Resort Casino,
356 NLRB No. 111 (Mar. 17, 2011)
 Key takeaway
Racially inflammatory campaign propaganda
distributed through social media can provide
grounds to set aside an election
Settlement Agreements
Ingham Regional Medical Center
 Two discharged employees claimed:
 Discharge because of electronic
discussions about terms and conditions of
employment
 Cell phone policy overly broad
Settlement Agreements (cont.)
Ingham Regional Medical Center
 Settlement agreement
 Reinstatement with back pay
 Post notice
 Limit scope of policy
Settlement Agreements (cont.)
Healthcare Ventures of Ohio, LLC
 Employee claimed:
 Confidentiality policy overly broad
 Supervisor interrogated employee about
others who electronically discussed
termination of coworkers
Settlement Agreements (cont.)
Healthcare Ventures of Ohio, LLC
 Settlement agreement
 Not to maintain an “overly broad
confidentiality rule” prohibiting employee
discussions of terms and conditions
Settlement Agreements (cont.)
American Medical Response of Connecticut
 Division of advice claims:
 Overly broad policy against the depiction
of company without authorization
 Overly broad policy against disparaging
comments against company, supervisors,
coworkers and competitors
Settlement Agreements (cont.)
American Medical Response of Connecticut
 Division of advice claims:
 Employee asked to prepare incident report
without union representation
 Employee discharged for vulgar remarks
on Facebook about her supervisors
Settlement Agreements (cont.)
American Medical Response of Connecticut
 Settlement agreement
 Not to maintain an overly broad policy
restricting employee discussions about
work conditions while not at work
Settlement Agreements (cont.)
Build.com
 Discharged employee claims:
 Retaliation for Facebook postings alleging
labor code violations
 Other “Facebook friend” employees
responded to postings
Settlement Agreements (cont.)
Build.com
 Settlement agreement
 Reinstatement with back pay
 Post notice about employees’ right to
post comments on social media about
terms and conditions of employment
Tips for Developing Policies That
Withstand NLRB Scrutiny
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Clearly communicate that all systems are owned by the company
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Clearly communicate that all systems provided are for company
business use and not personal use
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Clearly communicate that employees have no reasonable
expectation of privacy in use of any technology owned/provided
by the company (including email, laptop computers, PDAs,
internet, etc.)
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Communicate notice of intent to monitor and the frequency and
purpose of monitoring
 Assure legal compliance with all monitoring activities
 Electronic Communications Privacy Act
 Stored Communications Act
 State Wiretapping Laws
Tips for Developing Policies That
Withstand NLRB Scrutiny (cont.)
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Clearly explain that monitoring extends to all aspects of the
company systems, social media and technologies:
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All information forwarded or received on company email system is
subject to monitoring and may be stored
All information sent, received or viewed on the internet (including
personal emails on yahoo, msn and other personal email accounts),
web-based communications, instant messages, text messages or other
forms of communication can be stored on the computer’s hard drive
and/or the company’s servers and can be reviewed and retrieved by
the company at any time
Back-up copies of electronic communications may exist, even if they
have been “deleted” from the computer
Tips for Developing Policies That
Withstand NLRB Scrutiny (cont.)
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Clearly describe and specifically define prohibited activities (do not
use vague or overbroad language that might chill employee speech):
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Disseminating Confidential Information;
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Engaging in actions or downloading materials that are vulgar, harassing,
threatening, intimidating, defamatory, discriminatory, or libelous;
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Engaging in “hacking” or intentionally introducing computer viruses;
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Tampering with or disabling security mechanisms on company computers
and other equipment; and
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Violating copyright laws, trademarks, and third-party privacy rights.
Tips for Developing Policies That
Withstand NLRB Scrutiny (cont.)
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Obtain express notice and consent – obtain employee
acknowledgment and issue periodic reminders of policy.
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System log in page
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Email disclaimers
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Periodic policy review
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Periodic policy re-distribution
Warn employees that their violations of the policy – as with other
policies – are grounds for disciplinary action, up to and including
termination of employment
Tips for Developing Policies That
Withstand NLRB Scrutiny (cont.)
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Address shared sites and weblogs as applicable:
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Employees can blog on their own time, but remind them to exercise
decorum, comply with all Terms of Use for sites, and restrict them from
presenting their opinions in a manner that can be viewed as the company’s
opinion
When endorsing company products/services, remind employees that they
must disclose employment relationship with the company
When employees are authorized to establish or administer companysponsored social networking sites, set ground rules –
 Sites belong to the company;
 Post only accurate information about the company and its
products/services;
 Maintain appropriate decorum and professionalism when posting and
responding to posted comments; and
 Bring false comments posted by others to the immediate attention of
management (for uniform corporate response).
Tips for Developing Policies That
Withstand NLRB Scrutiny (cont.)
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Beware your duty to monitor certain activities - Doe v. XYZ Corp., 382
N.J. Super. 122 (App. Div. 2005).
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Various state statutes imposing affirmative obligation on computer
technicians or internet service providers to report child pornography if then
encounter it in the scope of their work (e.g., AR, IL, MI, NC, OK, SC)
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Inform employees in policies that company will cooperate with criminal
investigations
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Train employees responsible for monitoring to promptly investigate
allegations of unlawful conduct
But also beware, limitations that may be set on your ability to monitor,
i.e., for what there is a business-related need to know - Stengart v.
Loving Care Agency, Inc., 201 N.J. 300 (2010).
Tips for Developing Policies That
Withstand NLRB Scrutiny (cont.)
 Include a disclaimer to explain that the policy does
not prohibit, and is not intended to prohibit,
employees from engaging in protected concerted
activity or discussing wages, hours and working
conditions
Example: “Nothing in this policy is designed to interfere with,
restrain or prevent employee communications regarding wages, hours
or other terms and conditions of employment. Employees have the
right to engage in, or refrain from, such activities.”
Other Recommendations for
Employers Developing Policies
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Enforce the policies and punish policy violators
Be consistent in your policy and practices
Investigate carefully before issuing discipline
Carefully evaluate whether a posting is directed to co-workers or
could be construed as an attempt to initiate group action (i.e., do
not discipline employees for engaging in concerted activities, such
as postings aimed to engage co-workers in discussions of working
hours, wages and conditions)
When searching, search reasonably
Don’t undermine your own policies!
Train employees on the policies
Train managers on the policies
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Recruitment
Access to password protected sites
References
Discipline
Posting Requirements
 NLRA Rights Notice
 Right to act together to improve wages
and working conditions
 Right to form or join union
 Right to bargain collectively
 Right to refrain from above activities
Posting Requirements (cont.)
 NLRA Rights Notice must be
 Posted in conspicuous place in workplace
 Made available on Internet or intranet
 Posted in foreign language if 20 percent of
workforce not proficient in English
Union Organization Using
Employer Email System
Roundy’s, Inc., 356 NLRB No. 27 (2010)
 Registered Guard:
Employer may deny access to employees using for
purposes of union organization
 Central issue in Roundy’s:
Whether Registered Guard applies to non-employee
access cases
Union Organization Using
Employer Email System (cont.)
Roundy’s, Inc., 356 NLRB No. 27 (2010)
 NLRB Acting GC has advocated:
Registered Guard should be overruled
Sandusky Mall should apply to all access cases
 Briefing concluded, but no ruling yet
Confidentiality
Costco Wholesale Corporation,
358 NLRB No. 106 (Sept. 7, 2012)
 Employees’ NLRA rights infringed by:
 Policies prohibiting unauthorized posting on, or
removal of materials from, company property
 Policies prohibiting disclosure of private or
sensitive information
(e.g., health information, private contact information, SSNs,
credit card information)
Confidentiality in
Internal Investigations
Banner Health Sys. d/b/a Banner Estrella Med. Ctr.,
358 NLRB No. 93 (July 30, 2012)
 Hospital employee refused to follow supervisor’s
instructions and complained to HR
 HR investigator asked interviewed employees
not to discuss with others
 Employee discharged for insubordination
Confidentiality in
Internal Investigations (cont.)
Banner Health Sys. d/b/a Banner Estrella Med. Ctr.,
358 NLRB No. 93 (July 30, 2012)
 ALJ dismissed
 Purpose to protect integrity of investigation
 NLRB reversed
 Legitimate business reason must outweigh
right to protected concerted activity
At-Will Acknowledgements
 NLRB acting GC has issued contradictory
advice memoranda on topic
 Hyatt Hotels – GC against policy requiring
employees to acknowledge that their at-will status
could not be altered without agreement
 Months later, GC upheld handbook disclaimers
comparable to that in Hyatt Hotels
 “[I]t is not the purpose of the [NLRA] to give the Board
any control whatsoever over an employer’s policies”
Any Questions?
Thank you!