July 26, 2013
Like all forms of technology, social media is changing at a breakneck pace. By now most employers are aware of Myspace, Facebook, and Twitter, but do you have policies and procedures in place that cover of impact employee activity on micro photo and video websites such as Instagram and Vine?
Last week, the National Labor Relations Board’s (“NLRB”) Office of General Counsel published an Advice Memorandum (the memorandum is dated March 12, 2012, but it is not known why it sat unpublished for 16 months) which may impact current and proposed social media work place policies. The policy in question stated:
“Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.”
The NLRB Office of G.C. concluded:
“We further find that the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonable be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketed or other concerted activities.”
In support of this position, the NLRB Office of G.C. cited a single case, Sullivan, Long & Hagerty, 303 NLRB 1007, 1013(1991), enforced in Boilermakers Local Lodge 108 v. National Labor Relations Board, et al. 976 F.2d 743 (11th Cir.). In Sullivan, it was held that employee tape recording at jobsite to provide evidence in a Department of Labor investigation was considered protected.
There most certainly is a difference, but until the courts or the NLRB provide employers with better guidance, they review their social media policies to ensure that the policies are in-line with the current NLRB Office of the GC’s stance.
