A heretofore overlooked National Labor Relations Board advice memo seems to widen employees’ leeway in discussing their workplace issues — to protection for posting work photos and even the use of their employer’s logo.
You’ve read about earlier NLRB rulings concerning employees’ use of social media to discuss the “terms and conditions” of their jobs. But this is the first mention of workplace photographs and the use of brand identifiers.
The 2012 memo, originally obtained by the website Law360, says that food retailer Giant Food LLC’s social media policies violated labor law by prohibiting workers from taking photos or videos of the supermarket’s premises and posting them online. It also ruled that a prohibition on the use of the company logo was in violation of the NLRA.
Insufficient disclaimer
The offending sections of Giant’s policy:
- You have an obligation to protect confidential, nonpublic information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate, any confidential information about the Company or any related companies . . . or about other Associates, customers, suppliers or business partners. If you have questions about what is confidential, ask your manager.
- Do not use any Company logo, trademark or graphics, which are proprietary to the Company, or 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.
- Do not defame or otherwise discredit the Company’s products or services . . .
- Speak up if you believe that anyone is violating these guidelines or misusing a Company-sponsored site. . . .
The company did add one last disclaimer to its policy:
Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.
But the NLRB ruled that wasn’t enough.
Ronald Meisburg, writing on Proskauer Rose’s Labor Relations Update blog, explained that the ruling said the company “failed to include sufficient limiting language and clarification of terms such as ‘nonpublic information’ and ‘confidential information,”” so that workers might think the employer was limiting their ability to discuss workplace issues.
The Advice Memo also concluded that prohibiting employees from photographing or videotaping the Company’s premises could “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,” Meisburg wrote.
