Most Employers Still Overbroad on Social Media Policies, According to Latest Report by National Labor Relations Board
June 1, 2012
The National Labor Relations Board's (NLRB) Acting General Counsel recently found that in six of seven cases reviewed, at least some portion of the employer's policy on social media was overbroad and, as a result, unlawful. According to the General Counsel, the unlawful policies tended to preclude or inhibit the protected rights of employees, such as the right to discuss wages and working conditions with co-workers.
The General Counsel's latest report outlines seven cases involving challenges to policies and rules that address a broad range of issues, including the use of social media and electronic technologies, employer and employee confidentiality, privacy, protection of employer intellectual property, and contact with media and government agencies. This is the third in a series of reports on recent social media cases before the NLRB. http://hr.cch.com/eld/OM_12_59_Report.pdf
In several of the cases evaluated in the most recent report, the policies and rules were determined to be unlawful despite the inclusion of a "savings clause" stating the policy or rule was not intended to violate Section 7 of the National Labor Relations Act. The General Counsel deemed such clauses to be ineffective in the absence of sufficient examples of prohibited conduct that would clarify for employees that the policy or rule does not apply to protected communications about working conditions.
In only one of the seven cases reviewed did the General Counsel find the social media policy to be lawful in its entirety. Although the policy covers many of the same subjects addressed by the policies considered unlawful in the other cases, it provided specific examples of prohibited conduct that eliminated any ambiguity regarding its application to activity protected by the Act. In order to provide further guidance in this area, the General Counsel includes a copy of the policy in his report.
If you have any questions about this subject, or would like assistance in the drafting or review of your company's social media policies or rules, feel free to contact any member of Chambliss' Labor and Employment Section.