On January 1, 2017, the National Labor Relations Board (NLRB) Office of the General Counsel released an advice memorandum (dated September 22, 2016) reviewing the social media policy in Northwestern University’s revised Football Handbook. The memorandum contains valuable guidance in an area full of uncertainty, as the NLRB has struck down seemingly common sense social media policies because of their potential to chill employees’ rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted protected activities.” Section 8 of the NLRA prohibits employees from restraining employees from exercising their Section 7 rights.
According to the memorandum, Northwestern voluntarily revised its Football Handbook after receiving a charge alleging that the handbook violated the NLRA. The advice memorandum reviewed the revised handbook for compliance with the NLRA. Assuming for the purpose of the review that Northwestern’s football players are “employees” under the NLRA, the advice memorandum concluded that the revised social media policy passed muster.
The memorandum reprinted the original language of the policies along with the revisions in redline, as follows (deleted language in strikeout and new language in bold):
[W]e are concerned about… protecting the image and reputation of Northwestern University and its Department of Athletics and Recreation. . . .
Publicly posted information on social networking websites can be seen may be regularly monitored by any person with a smart phone or internet access, including individuals a number of sources within Northwestern University (e.g., Athletics Department, Student Affairs, University Police). . . .
Northwestern student-athletes should be very careful when using online social networking sites and keep in mind that sanctions may be imposed if these sites are used improperly or depict inappropriate, embarrassing harassing, unlawful or dangerous behaviors such as full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment, unlawful activity or any content that violates Northwestern University, Athletics Department or student-athlete codes of conduct and/or state or federal laws.
….
Do not post any information, photos or other items online that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms, hazing, harassment or unlawful activity could embarrass you, your family, your team, the Athletics Department or Northwestern University.
Although the advice memorandum did not elaborate on why the original policy could violate the NLRA while revised policy would not, it provides important clues on drafting lawful social media policies. The modifications to the policy generally substituted vague terms like “inappropriate” and “embarrassing” with descriptions of the content that the policy prohibits. For example, the revised policy specifically prohibits social media posts depicting “nudity,” “racial or sexual epithets,” and “underage drinking,” among other things. The revised policy also eliminated protection of the employer’s “image and reputation” from the description of the policy’s purpose. In previous guidance, the NLRB has determined that employers may not require employees to refrain from engaging in activity that generally damages the employer’s reputation because that could be construed to prohibit “concerted protected activity” such as criticism of work conditions or compensation policies.
The recent advice memorandum reinforces the need to be precise when drafting a social media policy. Experienced counsel can assist in identifying the types of social media content that the NLRB has allowed employers to prohibit employees from posting.
