For good and for bad, social media provides those with something to say a quick and easy forum in which to say it. It also provides a great means for others to respond just as quickly and easily to what has been said.
Last Thursday, I posted about the 3rd guidance memorandum issued that day by the NLRB’s Acting General Counsel. Yesterday, my take on the issue (among others’) was referenced in a blog published by Leland Beck, a Washington, D.C. attorney who publishes a very informative blog called the “Federal Regulations Advisor”. Mr. Beck makes several interesting points in his post, which further highlights the slightly-managed chaos that has been thrust upon us semi-annually since the NLRB’s first “guidance” on this topic was issued last summer.
One interesting question raised in Mr. Beck’s post was whether too much importance has been placed on the NLRB’s “guidance memoranda”. There is a risk, it is suggested, that readers of the memoranda may incorrectly assume that the Acting General Counsel “speaks for the voting quorum of the NLRB”, and thus has the teeth of an agency rule without having gone through the required rulemaking process.
I agree generally with this point, but note that we must consider the practical realities here too. Not all issues considered by the NLRB get the celebrity treatment that these social media memoranda have been getting, and the NLRB does not issue “guidance” memoranda on any and all issues. In fact, when the “guidance” memoranda are replete with terms such as “we found these rules unlawful” and “the Board has long held” and “we concluded” and “the portion of the rule . . . is unlawful”, it is naïve to think that employers will (or should) step back and ignore the “guidance” simply because it was “only” issued by the Acting General Counsel. The Acting General Counsel did not suggest that he was offering only friendly advice to take or leave, when he concluded in his introductory portion:
“I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area.”
So, whether or not these guidance memoranda ultimately will be upheld in their substance, or found to be improper rulemaking in sheep’s clothes, is largely irrelevant, when the lone voice of authority (i.e., a governmental board like the NLRB) continues in the present moment to implicitly threaten companies with very real enforcement proceedings if their employment-based decisions run afoul of “protected concerted activity” rights, in the eyes of the chief legal speaker for the NLRB. Or if their policies are not as narrowly tailored as the NLRB’s chief legal speaker (and, by the way, prosecuting office) would like.
Employer Take Away: What should you as an employer take away from this development?
Many bloggers look at the NLRB’s recent social media “guidance” from slightly different angles, and often with multi-colored glasses. All pretty much agree, though, that the current status of the NLRB’s “guidance” is problematic for employers, if for no other reason than the fact that this administrative activity still does not provide the finality and certainty that companies look for in their employment law questions.
So this again begs the question: From your company’s perspective, are you better off tailoring your social media practices and policies to comport as much as possible with the (as of now) lone voice of government guidance? Or, are you willing to act in a manner that makes the most practical, business sense for your company, with the expectation (and hope) that subsequent activity (by a court or otherwise) may temper the NLRB’s current enthusiasm? Perhaps there is a way to proceed down both paths.