Tuesday, July 23, 2013

Instagram, Vine, and … the NLRB (uh-oh)

Are you concerned about the impact of micro photo and video sites such as Instagram and Vine on your workplace? For the past few months, Dan Schwartz, writing at his Connecticut Employment Law Blog, has been all over this issue, suggesting that in light of the growing popularity of these sites, now more than ever employers need social media policies, while also cautioning that the regulation of workplace photos and videos would be the next social media enforcement frontier for the NLRB.

It appears that Dan’s prediction was right on the money. Last week, the NLRB’s Office of General Counsel published an Advice Memorandum [pdf] (dated March 21, 2012, but, for reasons unknown, which sat unpublished for 16 months).

Among other issues, the memo took up the following prohibition in a supermarket chain’s social media policy:

Do not use any … 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.

According to the NLRB Office of G.C., that policy is, on its face, an overly restrictive ban on employees’ rights to engage in protected concerted activity:

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 reasonably 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 picketing or other concerted activities.

Amazingly, the only citation provided in support of this broad legal statement is a 22-year-old case, which held that an employee’s tape recording of a jobsite to provide evidence in a Department of Labor investigation is protected. Folks, there is a huge difference between recording something at work to gather evidence for a government investigation, and this.

The NLRB needs to allow employers to promulgate reasonable rules that protect their legitimate interests (e.g., confidentiality, or ensuring that employees are actually working during working hours), while protecting the rights to employees to engage in legitimate protected activity (e.g., complaining about discrimination or working conditions, or gathering evidence for a government investigation). Otherwise, the NLRB is attacking facially neutral policies because of an imagined parade of horribles that could never materialize, all the while making it exceedingly difficult for businesses to draft policies that establish reasonable baseline expectations for workers and management.

Hat tip: Labor and Employment Law Perspectives