by Elijah Yip
On January 1, 2017, the National Labor Relations Board’s (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. The NLRB has struck down seemingly commonsense social media policies because of their potential to dissuade employees from exercising their rights under Section 7 of the National Labor Relations Act (NLRA) to engage in “concerted activities.” Section 8 of the NLRA prohibits employers from restraining employees in the exercise of their Section 7 rights. 
University punts vague policy terms
According to the memorandum, Northwestern voluntarily revised its football handbook after it received a charge alleging that the handbook violated the NLRA. The General Counsel 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 NLRB concluded that the revised social media policy passed muster.
The advice memorandum included the original language of the policies along with redlined revisions. In the following excerpt, the deleted language is struck through, and the new language is in boldface type:
We 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 by may be regularily monitored 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 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 didn’t elaborate on why the original policy could violate the NLRA while the revised policy would not, it provides important clues about drafting lawful social media policies. The modifications to the policy generally substitute vague terms like “inappropriate” and “embarrassing” with descriptions of the behavior 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 eliminates protection of the employer’s “image and reputation” from the description of the policy’s purpose. In previous guidance, the NLRB has determined that an employer may not require employees to refrain from engaging in activity that generally damages the employer’s reputation because that could be construed to prohibit protected concerted activity such as criticism of working conditions or compensation policies.
Bottom line
The NLRB’s advice memorandum reinforces the need to be precise when you draft a social media policy. Experienced counsel can assist you in identifying the types of social media content that the NLRB has allowed you to prohibit employees from posting.
Elijah Yip is a partner with Cades Schutte LLP in Honolulu and chair of its digital media and Internet law practice group. He is a frequent contributor to Hawaii Employment Law Letter and author of the blog LegalTXTS blog. He may be contacted at eyip@cades.com.