NLRB and Social Media: Updating Your Policies for 2023

The NLRB's Renewed Focus on Workplace Rules

The National Labor Relations Board (NLRB) has significantly shifted its approach to employer workplace rules, including social media policies. The Board's 2023 decision in Stericycle, Inc. established a new, more employee-friendly standard for evaluating whether employer rules violate Section 7 of the National Labor Relations Act, which protects employees' rights to engage in concerted activity for mutual aid and protection.

This affects every private-sector employer, not just those with unionized workforces. If your social media policy has not been reviewed recently, it likely needs updating.

What Changed with Stericycle

Under the previous standard from Boeing Co. (2017), the Board balanced employer interests against employee rights and sorted rules into categories based on their likelihood of being found unlawful. The Stericycle decision replaced this with a standard that asks whether a rule has a reasonable tendency to chill employees from exercising their Section 7 rights, as interpreted from the perspective of an employee who is economically dependent on the employer.

If a rule could reasonably be interpreted to restrict protected activity, the burden shifts to the employer to demonstrate that the rule advances a legitimate and substantial business interest and that no narrower rule would serve that interest.

Common Social Media Policy Provisions at Risk

Confidentiality clauses. Broad prohibitions against sharing "confidential company information" on social media can be problematic if they could be read to prohibit employees from discussing wages, working conditions, or workplace concerns with coworkers or the public.

Disparagement prohibitions. Rules prohibiting employees from making "disparaging" or "negative" comments about the company, its management, or its products may chill employees from publicly criticizing working conditions, which is often protected concerted activity.

Authorization requirements. Requiring employees to obtain approval before posting about the company can be overbroad if it extends to personal social media activity related to working conditions.

Brand protection clauses. Rules requiring employees to protect the company's "brand" or "reputation" in their personal social media use may be interpreted to prohibit protected criticism.

How to Rewrite Your Policy

Be specific about what is prohibited. Instead of broad confidentiality clauses, identify the specific categories of genuinely confidential information you need to protect: trade secrets, customer data, proprietary processes, non-public financial information.

Include a savings clause. Add language stating that the policy is not intended to restrict any rights employees may have under the National Labor Relations Act, including the right to discuss wages, hours, and working conditions.

Distinguish company accounts from personal accounts. Your authority over official company social media accounts is broad. Your authority over employees' personal accounts is limited. Make this distinction clear in your policy.

Focus on conduct, not content. Instead of prohibiting "negative" speech, focus on genuinely harmful conduct: disclosing trade secrets, harassment, threats, or knowingly false statements.

Provide examples. Concrete examples of prohibited and permitted conduct help employees understand the policy and help demonstrate that the rule is narrowly tailored.

Sample Policy Framework

A compliant social media policy might include these elements:

• Statement that employees may discuss wages, benefits, and working conditions on social media
• Prohibition on disclosing specifically defined trade secrets and confidential business information
• Requirement that employees not represent personal views as company positions
• Prohibition on harassment, threats of violence, and knowingly false statements
• Guidelines for official company social media accounts
• Savings clause preserving Section 7 rights

Review Beyond Social Media

The Stericycle standard applies to all workplace rules, not just social media policies. Employers should also review policies covering employee conduct, confidentiality, media communications, and electronic communications for language that could be interpreted as restricting protected activity.

Have your employment counsel review your entire handbook under the new standard. The cost of a proactive review is modest compared to the cost of defending an unfair labor practice charge.