Social Media Employment Law

Hot Off The Press – Today’s New NLRB Social Media Guidance

It’s not just lawyers and bloggers who think the NLRB’s continuing position on social media policies is important.   Apparently, the NLRB itself does too.   So much so, that – just today – the NLRB’s Office of General Counsel issued its third guidance memorandum on social media policies in the workplace.

The first guidance memorandum on August 18, 2011 was focused primarily on adverse employment decisions based on employee social media activity, with a smaller discussion about the scope of social media policies.   The second memorandum on January 24, 2012 also addressed adverse employment action, but contained a more detailed analysis of the do’s and don’ts of workplace policies.  

Today’s third memorandum is devoted exclusively to the NLRB’s updated thoughts on seven employer social media policies on which the agency has recently issued administrative rulings.   Highlights from today’s memorandum:

Impermissibly Overbroad Policy Provisions According To The NLRB

Permissible Policy Provisions According To The NLRB

Employer Take Away:   What should you as an employer take away from this development?   

I believe that many of the NLRB’s positions regarding impermissible and overbroad provisions are way over the top, constitute agency overreaching, and will not ultimately hold up in court.   So I offer the usual caveat that we can only get the final word on these issues when the NLRB’s position is appropriately vetted and tested by the judicial system, much like other recent actions of the NLRB have been struck down by courts.

Yet, until someone in a black robe agrees with the “overreaching” contention, the NLRB is currently the only voice of authority in the auditorium.   The common thread that seems to tie all of the NLRB’s statements seems to be the following from today’s memorandum:  “Rules that are ambiguous as to their application to [protected] activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict [protected] rights are unlawful.”

If your company is not yet willing to test the NLRB’s guidance in court, it is best to either eliminate the patently offending provisions, or draft them in a way that makes the impermissible, permissible.

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