MORE GUIDANCE FROM THE NLRB ON SOCIAL MEDIA POLICIES
When it comes to employers’ social media policies, the law continues to evolve, and quickly so. Just this week, the NLRB issued additional guidance to all employers - not just those with unionized workforces- concerning employees’ postings on Facebook, LinkedIn and similar sites.
The Acting General Counsel of the National Labor Relations Board, Lafe Solomon, has recently issued a second report on social media to provide guidance to employers and human resource professionals on social media policies. The report is the Acting General Counsel’s interpretation of the National Labor Relations Act as it applies to media that did not exist when the National Labor Relations Act was enacted.
To date, the NLRB has decided seven (7) cases involving employers’ social media policies. In five (5) of those cases, the NLRB found that the policy was unlawfully overbroad. Only one (1) policy was found to be lawful and a second was found to be lawful only after it was revised by the employer. In addition, seven (7) other cases involved terminations of employees for posting on Facebook. In several discharge cases, the NLRB determined that the employment terminations were unlawful because they flowed from unlawful social media policies. However, in one case, the NLRB found that the discharge was lawful because the Facebook posting was not work related.
The report essentially involves two guidelines for social media policies:
1. Policies should not be so broad that they prohibit discussion of issues protected by the NLRA such as discussions of wages and working conditions among employees.
2. Social media polices may prohibit employees communications on social media sites that simply involve employee gripes not made in relation to group activity among employees
The bottom line for now is that employers should use considerable caution when implementing policies and disciplining employees for posting comments on Facebook, LinkedIn and the like.
This is not to suggest that employers should avoid social media policies altogether. To the contrary, a good social medial policy is a must and should caution employees or prohibit postings which involve confidential and similar information and require pre-approval for posting information on behalf of the Company.
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