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National Labor Relations Board Issues New Report on Social Media

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On May 30, the National Labor Relations Board (NLRB) issued a new report on employer social media policies, which should be of particular interest to employers and their legal, compliance and human resources counsel. The report highlights both real-world examples of policies and rules which violate Section 7 of the National Labor Relations Act, as well as provides an example of an “acceptable” policy.

In its latest report, the NLRB found that policies which, for example, barred workers from discussing or disclosing information regarding conditions of employment on social networking sites, discussions or criticism of an employer’s labor policies or treatment of employees, or policy language that effectively discouraged employees from “friending” colleagues or communicating among co-workers, or commenting on legal matters were all unlawful, because the restrictions “would reasonably be construed to chill the exercise of Section 7 rights” by employees under the National Labor Relations Act.

Specific examples of unlawful policies include:

• A policy barring employees from disclosing “confidential guest, team member or company information” on social networking sites such as Facebook or YouTube – which was found to be unlawful because the language could “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";
• Policies which instruct employees not to post “offensive, demeaning, abusive or inappropriate remarks” or which require that employee posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site” – because “the term ‘completely accurate and not misleading’ is overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of, the employer’s labor policies and its treatment of employees”;
• Cautioning employees to “think carefully” about friending colleagues – because it is too overbroad and would discourage communication among co-workers; and,
• Prohibiting employees from commenting on legal matters – because, “…it specifically restricts employees from discussing the protected subject of potential claims against the employer.”

The NLRB has previously issued two other reports on social media polices, in August 2011 and January 2012, respectively. However, what sets the May 30 report apart from the other two previous reports is that this report also included an actual example of an acceptable social media policy. This is unusual, because it goes beyond the traditional guidance generally given by the NLRB.

The policy example contains relatively generic warnings to employees while steering clear of any specific unlawful language, and clearly delineates the possible penalties for violation of the policy while still giving the employer control over the outcome of any internal disciplinary or enforcement action.

"I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in the area,” said NLRB acting general counsel Lafe Solomon in a news release.

This article is not intended as legal advice or legal counsel in the confines of an attorney-client relationship. Be sure to consult with an attorney to review your organization's specific needs and obtain appropriate advice on these issues.

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