Employment Law Blog

News, trends and analysis in employment law and HR

Jun 08, 2012

NLRB takes aggressive aim at employers regulating social media use

Labor Relations 

Employers may be shocked to hear what the federal National Labor Relations Board (NLRB) says is unlawful when it comes to confidentiality and social media policies. The acting General Counsel for the NLRB recently issued an Operations Management Memo, which thoroughly examined several employer social media policies for compliance with the National Labor Relations Act (NLRA).

Employers may be shocked to hear what the federal National Labor Relations Board (NLRB) says is unlawful when it comes to confidentiality and social media policies. The acting General Counsel for the NLRB recently issued an Operations Management Memo, which thoroughly examined several employer social media policies for compliance with the National Labor Relations Act (NLRA). The General Counsel’s office found elements of each policy it examined to be unlawful or, in some cases, struck down the entire policy as a violation of the NLRA. The memo primarily deals with any policy that would prohibit or discourage employees from engaging in their protected right to discuss wages, hours and working conditions with co-workers and the public. The policies struck down by the General Counsel can probably be found in most employer handbooks. Here’s an example of some language the General Counsel found to be unlawful:

 

  • “Don’t release confidential guest, team member or company information”
  • “Do not reveal non-public company information on any public site”
  • “Think carefully about ‘friending’ co-workers…on external social media sites”
  • “Avoid harming the image and integrity of the company [online]”

The General Counsel also determined that having a “savings clause” in the policy, (such as “this policy will be administered in compliance with all applicable laws and regulations, including the NLRA”) did not bring the policy into compliance. If an employee could read the policy and reasonably believe that their employer was discouraging or prohibiting them from engaging in discussions online regarding their wages, hours or working conditions, then the policy was found to be unlawful.
 
Tips: The General Counsel’s memo takes a very aggressive stance against regulating an employee’s online activity and deals a major blow to employers trying to implement social media policies. The General Counsel did, however, provide some useful guidance as to what a lawful social media policy should look like and included a sample policy. Vigilant has incorporated the NLRB’s new guidance into our “Social Networking Policy” (6310). In addition to reviewing your social media policy, be sure to review your other policies that could contain language found to be unlawful by the NLRB (e.g. confidentiality, privacy, copyrights). Your Vigilant staff representative would be happy to help bring your policies into compliance with the NLRB General Counsel’s memo.   

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