NLRB General Counsel issues third social media memo

Arnstein & Lehr attorney Jesse Dill

Jesse Dill

On May 30, 2012, the Office of the Acting General Counsel of the National Labor Relations Board issued a third memorandum discussing recent cases addressed by his office that involve social media. As with the prior publications by the Acting General Counsel on this subject, this memorandum is designed to provide guidance for the public to understand how the Acting General Counsel views the interaction between social media and the National Labor Relations Act. I previously wrote on the content of the second memorandum here.

Unlike the previous memoranda of January 2012 and August 2011, the sole focus of this memorandum is social media employment policies. The prior two reports considered both employer policies and adverse employment actions taken in response to employees’ social media activity. The discussion included in the third report does not address the legality of employer actions taken in response to employee social media activity.

The third memorandum covers a wide variety of policies analyzed by the Acting General Counsel. These policies addressed employee conduct with respect to social media and “friending”, customer privacy, discussion of company legal matters, copyright issues, online harassment and bullying, contact with the media and others.

Of great interest to employers attempting to create social media policies for their workplace should be the inclusion of a full policy deemed by the Acting General Counsel to be entirely lawful under the National Labor Relations Act. Many questioned the ability of employers to develop a lawful policy following the release of the second memorandum. This full policy in the new memorandum and the Acting General Counsel’s accompanying commentary serves as a successful example for employers.

The third memorandum reinforces several points prevalent in the previous reports. The Acting General Counsel again took issue with broad terms such as “appropriate” content and “confidential” information without defining those words or placing them in context. Additionally, although a social media policy may include a savings clause that states the policy will not be applied to limit employees’ Section 7 rights, the Acting General Counsel explained his view that this may not be sufficient to cure an unlawful policy. However, the new report offers more explanation on issues such as employee identification and employer association with respect to social media posts that was previously lacking.

Despite this third memorandum, creating a lawful policy that conforms to the legal requirements of the National Labor Relations Act remains challenging. Employers should continue to consult counsel versed in the law and latest legal developments to create a policy that best suits their company.

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