In line with its recent and ever-expanding interpretation of the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has once again found an employer’s social media and confidentiality policies unlawful. DirecTV maintained a social media policy that prohibited employees from blogging or posting messages on social media that disclose non-public company information. DirecTV also maintained a confidentiality policy that prohibited employees from discussing details about their job and the company’s business, projects, customers, and employees.
With respect to DirecTV’s social media policy, the NLRB found that an employee could reasonably construe the phrase “company information” as pertaining to records that included employee wages, disciplinary actions, etc. The phrase “company information” was ill-defined in the policy, therefore the NLRB found it to be, at a minimum, ambiguous and unlawful because employees could believe that it interfered with their rights under the NLRA to engage in protected concerted activity. With respect to the confidentiality policy, the NLRB found that it was too broad and could be interpreted by employees to restrict their right to discuss the terms and conditions of their employment with co-workers, “union representatives, Board Agents and other governmental agencies;”—once again, a violation of the right to engage in protected concerted activity.
Employers are advised to review their policies to ensure that employees are not restricted from discussing the terms and conditions of their employment in any forum and that phrases and terms used in employee policies are clearly defined.