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NLRB General Counsel Issues
Third Memorandum on
Social Media Policies in the Workplace
On May 30, 2012 the General Counsel of the National Labor Relations Board ("NLRB" or "the Board") issued its third Memorandum summarizing the most recent cases before the Board. The memo was concerned exclusively with over broad employer social media policies.
The report signals that policies will be considered overly broad if the terms and restrictions contained within can be deemed vague enough to allow an employee to infer, in any way, that they restrict his or her rights to comment on terms or conditions of employment and/or to act concertedly in doing so, as protected under the National Labor Relations Act ("NLRA").
Examples From Social Media Policies
Which the Board Found to be Objectionable
- Requiring employees' posts to be "completely accurate and not misleading" was unlawful because it could be interpreted to apply to discussions or criticism regarding Employer's labor practices and treatment of employees. The Board explained that the policy did not provide examples for these terms.
- Requiring prior "permission before reusing other's content or images" was unlawful because it could prohibit employees from taking and/or posting pictures of employees picketing or working in unsafe conditions.
- Instructing that "[e]mployees, who receive unsolicited or inappropriate electronic communications from persons within or outside [Employer], should contact the President or the President's designated agent," was unlawful because it could be construed to restrain employee rights to communicate with co-workers or third parties, such as unions etc., regarding conditions of employment.
What You Need to Know
Employers should evaluate their social media policies and ascertain if they contain sufficient examples and/or explanation for each and any restrictive terms used in the policy. In this regard, "savings clauses," disclaiming that policy restrictions do not apply to employee rights under the NLRA will most likely be ineffective if they do not adequately serve to cure the ambiguity presented by the terms in the policy.
If you have any questions regarding how these recent interpretations of the law may affect your business or need assistance reviewing or drafting a social media policy, please feel free to contact Katherin Nukk-Freeman or the Nukk-Freeman & Cerra attorney with whom you normally work.
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