NLRB takes sledgehammer to social media policies

BY Allen Smith

In a May 30, 2012 report whose guidance is likely to be challenged in the courts, the National Labor Relations Board (NLRB) cautioned that it believes that many clauses common in social media policies violate the National Labor Relations Act (NLRA).

While Acting General Counsel Lafe Solomon’s report outlined six cases where it found clauses in employers’ social media policies to violate Section 7 of the NLRA, it provided in full one social media policy that was deemed lawful in its entirety.

Confidentiality provisions

Employers might assume that it’s OK to prohibit employees from disclosing confidential information on social media websites. That’s not necessarily so, according to the NLRB.

In a retailer’s social media policy, the NLRB took issue with the employer prohibiting employees using social media from releasing confidential guest, team member and company information.

Sound innocuous enough? Not to the NLRB, which stated that this phrase “would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves — activities that are clearly protected by Section 7.”

In addition, it found unlawful provisions that threaten employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information. “Those provisions would be construed as requiring employees to report a breach of the rules governing the communication of confidential information set forth above. Since we found those rules unlawful, the reporting requirement is likely unlawful.”

So, what if the employer’s policy instead prohibits employees from revealing nonpublic company information on any public site? This would encompass any topic related to the financial performance of the company, information that has not already been disclosed by authorized persons in a public forum and personal information about another employee, such as performance, compensation and status in the company, another policy provided.

No, no, cautioned the NLRB. “Because this explanation specifically encompasses topics related to Section 7 activities, employees would reasonably construe the policy as precluding them from discussing terms and conditions of employment among themselves or with nonemployees.”

And the NLRB didn’t like a rule prohibiting employees from posting information regarding the employer that could be deemed “material nonpublic information” or “confidential or proprietary.”

‘Don’t pick fights’

In addition, the NLRB was troubled by social media policy clauses that recommended: “Adopt a friendly tone when engaging online. Don’t pick fights. Social media is about conversations. When engaging with others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversation. Remember to communicate in a professional tone. … This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory — such as politics and religion. Don’t make any comments about employer’s customers, suppliers, or competitors that might be considered defamatory.”

Sound reasonable? Not to the NLRB, which “found this rule unlawful for several reasons. First, in warning employees not to ‘pick fights’ and to avoid topics that might be considered objectionable or inflammatory — such as politics and religion, and reminding employees to communicate in a ‘professional tone,’ the overall thrust of this rule is to caution employees against online discussions that could become heated or controversial. Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion. Without further clarification of what is ‘objectionable or inflammatory,’ employees would reasonably construe this rule to prohibit robust but protected discussions about working conditions or unionism.”

Permitted language

So, what exactly can an employer say in its policy?

An employer may prohibit users from posting anything on the Internet in the name of the employer or in a manner that could reasonably be attributed to the employer without prior written authorization from the president or the president’s designated agent.

And it’s OK to have a prohibition on representing any opinion or statement as the policy or view of the employer or of any individual in their capacity as an employee.

The report concluded with a verbatim copy of a social media policy approved in full. That policy provides that employees must:

• Know and follow the rules;
• Be respectful;
• Be honest and accurate;
• Post only appropriate and respectful content; and
• Not retaliate.

And some language about confidentiality apparently is lawful, as the NLRB approved this policy’s statement that employees “maintain the confidentiality of employer trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.”

The employer could require employees to respect financial disclosure laws when online and to not create a link from their blog or social networking site to an employer website without identifying himself or herself as an employer associate.

“Express only your personal opinions,” the approved policy also stated. “Never represent yourself as a spokesperson for the employer.”

The approved policy concluded by saying that “associates should not speak to the media on the employer’s behalf without contacting the corporate affairs department. All media inquiries should be directed to them.”

Allen Smith, J.D., is manager, workplace law content, for SHRM. 

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Who do you view as your biggest competitor?

Fifty winning retailers, state by state


Home Channel News selected 50 hardware stores — one from each state — for inclusion in the second annual Hardware Store All-Star list. The stores distinguish themselves with strong customer service, innovative approaches to retail and a connection to community and customers.

The alphabetical listing of All-Star stores, one from each of the 50 U.S. states, continues here with New Mexico, New York and North Carolina: 

New Mexico
Sun Valley Do it Best Hardware
Deming, N.M.
One person can make a difference, as Brennen Jeffers proved in advancing from part-timer to general manager of Sun Valley Do it Best Hardware in a few years. Put in charge of an underperforming store, Jeffers changed the reputation of the store, replacing underperformers with workers ready to learn and succeed. He remodeled the interior and expanded the space. The result: 20% increases in 2010 and 2011, with increased gross margins. 

New York
Young’s General PRO Hardware
Catskill, N.Y.
It gets pretty cold in the Catskills in February, so what better time to hold an indoor Hawaiian luau for your customers and staff? Retailer Brian Young trucked in 1,500 lbs. of sand, grass skirts, leis and miniature ponies. For St. Patrick’s Day, all green-colored products in the store were discounted. His themed events tend to draw a fun crowd, Young said, adding: “Happy people buy things.”   

North Carolina
Town & Country Hardware
Chapel Hill, N.C.
A lot of companies talk about trust. Town & Country Hardware defines it. “Our mission is to be the most trusted hardware store, and that means to provide credible answers to their questions,” said president Craig Ward. That’s why all employees follow a training matrix that is continually monitored. The eight-store retailer relies heavily on paint and outdoor living. It’s also one of the recent and prized additions to the Central Network Retail Group.

For the complete list of 50 winning retailers, state-by-state, register or log in to  


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Who do you view as your biggest competitor?

Amid show and tell, Stanley offers update

BY Ken Clark

For about two years, the story at Stanley Black & Decker was never too far removed from the single word: “integration.” The merger of two tool giants was a natural topic for analysts, observers and customers.

During a product demonstration and media day in New York City this month, the story began to change back to another word: “innovation.” The company, as it unveiled dozens of new products at a New York City event this month, says it is beginning to gel across Stanley, Black & Decker, Bostitch, DeWalt and Porter Cable.

“It’s not as much an integration, it’s now more of daily life for us,” said Kyle Dancho, Stanley Black and Decker’s president of hand tools and fastening, 

In his state-of-the-industry presentation, Dancho remained cautious. “Housing is starting to percolate,” he said. “We’re hearing it, but we aren’t necessarily seeing it.”

The company is rolling out 250 new hand tool products this year across brands and across regions. One area of interest is laser-aided measuring tools, thanks to the expiration of a previous business deal with Bosch. 

“We’re back in the game of laser measurement,” he said. 

And as the industry Stanley recently announced the acquisition of Brewster, N.Y.-based Powers Fasteners, a specialist and leader in concrete masonry anchors. 

“Together, we will combine our fasteners and anchors with [Stanley Construction and DIY’s] hand tools, power tools and accessories in the commercial construction channels, targeting concrete fastening,” said Jeff Powers, CEO of Powers Fasteners of Brewster, N.Y., in a statement.

Powers Fasteners, founded in 1921, will continue to conduct business as usual, according to executives. The same goes for Stanley, which sought to bust rumors that the acquisition signaled some sort of plan to change its core strategy and imitate a Hilti-style operation.

“We don’t want to be like Hilti,” Dancho said. “We are not going to go direct.” 

While Hilti is close to its end users, and Powers is close to its end users, the difference is that Powers relies on established distribution partners. “We will continue to do that,” Dancho said. 

In other Stanley news, the New Britain, Conn.-based tool maker said it was expanding its Shelbyville, Ky., facility.

The new products on display during the Stanley Black & Decker media event at the Westin in midtown Manhattan included:

• Bostitch cordless paper collated framing nailer;
• Stanley heavy-duty shop shears;
• Bostitch high efficiency, oil-free compressors; and
Stanley stud sensors with professional features.

In its most recent quarter, Stanley Black & Decker posted first quarter revenues of $2.65 billion, up from $2.36 billion in the first quarter of 2011. Net earnings declined 23% to $121.8 million. 



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Who do you view as your biggest competitor?