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Social media websites are a relatively new phenomenon, and employer policies that establish what employees may post on those websites have been the (moving) target of labor disputes and litigation. The National Labor Relations Board last month issued an opinion that should help employers in this area.

Policies prohibiting damaging statements about the company or its employees

The NLRB ruled that employers could not enforce blanket provisions prohibiting damaging statements about their companies or employees. Such a policy would violate the National Labor Relations Act by chilling employees from publicly commenting about the terms and conditions of their employment.

For this reason, the NLRB found the following policy statement to be in violation of the NLRA: 鈥淓mployees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the company, defame any individual or damage any person鈥檚 reputation . . . may be subject to discipline 鈥︹��

Citing prior decisions, the NLRB suggested alternative language that would be permissible. The decision identifies several categories of unprotected speech that an employer could prohibit. The list included speech that is: (a) 鈥渕alicious, abusive or unlawful;鈥� (b) 鈥減rofane language鈥� and 鈥渉arassment;鈥� (c) 鈥渋njurious, offensive, threatening, intimidating, coercing, or interfering with鈥� other employees; and (d) 鈥渟landerous or detrimental to the company.鈥�

In other words, the NLRB supported the prohibition of the use of speech that falls outside of the NLRA鈥檚 protection.

Policies prohibiting employees from discussing co-workers鈥� health conditions

Some companies have received substantial civil penalties and stiff criminal sanctions because employees鈥� confidential health information was compromised. As a result, many companies have adopted overly broad policies in their attempts to limit their liability.

The NLRB found the following policy to be in violation of the NLRA: 鈥淓mployees are prohibited from discussing private matters of members and other employees 鈥� including topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers鈥� compensation injuries, personal health information, etc.鈥�

According to the NLRB, this policy violates the NLRA because it lists private matters that relate to the terms and conditions of employment. An acceptable policy substitute, according to the NLRB, would be a policy that prohibits employees, whose job duties entail access to employees鈥� health information, from disclosing that information in any manner, including publication in social media.

Policies prohibiting employees from discussing their compensation

If an employer鈥檚 goal is to prohibit its employees from comparing paychecks, it will eventually find itself running afoul of the NLRA. An employee鈥檚 pay is clearly a term of employment, and limiting the employee鈥檚 right to share that information with co-workers is a violation of the NLRA.

If, however, the employer鈥檚 goal is to protect confidential information, the NLRB鈥檚 decision seems to suggest that a policy prohibiting employees from disclosing compilations of payroll data, when properly characterized as confidential business information, would not violate the NLRA.

Policies prohibiting disclosure of employees鈥� contact information

Prohibitions against sharing contact information are impermissibly broad, according to the NLRB鈥檚 decision. The problem here is that such a policy could hinder employees鈥� efforts to organize 鈥� a clear violation of the NLRA.

On the other hand, employers who are concerned with the privacy of their employees can prohibit the sharing of information obtained from the employer鈥檚 own files. The NLRB draws a distinction between information that employees learn 鈥渋n the normal course of their work activity鈥� (i.e., through discussions with co-workers) and information that employees learn from 鈥渢heir employer鈥檚 confidential or private records.鈥�

Policies requiring employees to use 鈥渁ppropriate business decorum鈥� in communications

Perhaps the biggest surprise in the recent NLRB decision was that policies requiring employees to use 鈥渁ppropriate business decorum鈥� in their communications were upheld.

The NLRB reasoned that employers are allowed to establish rules intended to promote a 鈥渃ivil and decent workplace,鈥� as long as a reasonable employee would understand the rule to be aimed at achieving that purpose. Moreover, employers need not define their terms or give clarifying examples.

The NLRB found acceptable policies that prohibit social media content that: (a) constitutes 鈥渋nsubordination 鈥� or other disrespectful conduct鈥� to a supervisor; (b) is 鈥渄isloyal, disruptive, competitive or damaging;鈥� or (c) 鈥渢ends to bring discredit to, or reflects adversely on,鈥� the employee, co-workers or the company.

DOL promotes flexible work environment

The U.S. Department of Labor recently launched a new website devoted to workplace flexibility.

鈥淲orkplace flexibility,鈥� a DOL spokesperson said, 鈥渋s a universal strategy that promotes an inclusive workforce and levels the playing field for people with disabilities.鈥�

The Worksite Flexibility Toolkit, launched to coincide with National Disability Employment Awareness Month, contains links to 172 resources. Visitors may access information on pending legislation, case studies, fact and tip sheets, frequently asked questions, issue briefs, reports, journal and news articles, slides, websites and other resources designed to educate both employers and employees on various legal and logistical aspects of workplace flexibility.

The website is available at .

Howard Rubin is a shareholder in Littler Mendelson鈥檚 Portland office. Contact him at 503-221-0309 or [email protected].

Don Stait is Special Counsel in Littler Mendelson鈥檚 Portland office. Contact him at 503-221-0309 or [email protected].