6/1/12

Labor and Employment Alert: A Moment of Clarity: Third Report on Social Media Provides Employers with a Policy Deemed Entirely Lawful

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In an extremely significant report concerning social media cases, issued on May 30, 2012, the NLRB's Acting General Counsel (AGC) has provided more guidance to employers with social media policies.

Perhaps the most helpful information for labor professionals comes at the end of the 22 page report (pdf). In concluding its summary of seven recent cases addressing the lawfulness of employer social media policies, AGC Lafe Solomon includes an entire social media policy which he has determined to be in full compliance with Section 7. The AGC found that the employer's revised social media policy was lawful, in its entirety, because the policy provided sufficient examples of prohibited conduct which, in context, could not reasonably be interpreted to prohibit employees' Section 7 protected activities.

Throughout its analysis of the recent cases, the AGC continually emphasizes the following rule of thumb for social media policies: If a rule is ambiguous as to its application to Section 7 activity and fails to contain limiting language or context that would make it clear to employees that the rule does not interfere with their Section 7 activities, the rule is unlawful. This is a rule the NLRB has applied to employer policies for many years, even before the widespread attention given to social media. To ensure compliance with Section 7, employer policies should clarify and restrict their scope by including examples of clearly illegal or unprotected conduct.

Applying this rule of thumb, some of the statements contained in employer policies that the AGC found unlawful include:

In comparison, the AGC determined that the following types of rules in social media policies are lawful:

Finally, it is worth noting that in several of the summarized cases, the AGC determined that the inclusion of a "savings clause" in the policy (i.e., that the policy will be administered in compliance with Section 7 of the NLRA) was not sufficient to cure the ambiguities in the unlawful provisions.

In light of this new guidance, labor professionals may want to:

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