NLRB Social Media Report: List of Key Findings

[Link: What Employers Can Learn About Social Media Policies from the NLRB’s Report—Proskauer’s Mark Theodore - LXBN]

By now you’ve undoubtedly heard that the National Labor Relations Board issued its third report on social media in the workplace earlier this month.

By many accounts, it’s not pretty. In fact, as Pullman & Comley’s Daniel Schwartz puts it:

“It’s an utter mess… For employers, make no mistake: This is the NLRB’s attempt at an all-out, crazy assault on an employer’s ability to have policies that have any teeth to them. Even the most innocuous of policies can get shot down by the NLRB as being over broad and illegal.” (After NLRB’s Memo, Drafting Employment Policies Got Trickier - Pullman & Comley)

For your reference, here are some of the key findings from the report as identified by lawyers and law firms on JD Supra. Click for complete analysis and commentary at the end of each link below:

• The NLRB continues to be highly critical of employer policy language that could be perceived by employees as prohibiting protected, concerted activity…
• The NLRB’s Acting GC states that it is unlawful to instruct employees in a social media policy to “[t]hink carefully about ‘friending’ co-workers”…
• An employer may not implement a policy that would reasonably tend to chill employees in the exercise of their rights…
• Companies need to consider whether their social media policies “would reasonably be construed to chill” the employees’ rights to discuss with each other their working conditions…
• A policy stating only that “inappropriate postings” about work or co-workers are prohibited likely violates the Act, but the policy is lawful if the employer includes examples…
• A policy of “get permission before reusing others’ content or images” is unlawful, as it would interfere with employee’s protected right to take and post photos of, for instance, employees on a picket line…
• A provision that informed employees that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline” was unlawful, according to the Board…
• The NLRB has blessed prohibiting employees from discussing information relating to “safety performance of the company’s systems or components for vehicles” or “secret, confidential or attorney-client privileged information”…
• Section 7 protects the rights of employees to discuss potential claims against their employer on the Internet (including legal matters)…
• A “Section 7 disclaimer” in your social media policy probably doesn’t hurt, but the NLRB’s guidance indicates that it probably won’t help, either…

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Also see:

• General Motors Social Media Policy Struck Down By NLRB (Barger & Wolen)
• Can Your Employer Control What You Say Online? (Lawyers.com)
• After NLRB’s Memo, Drafting Employment Policies Got Trickier (Pullman & Comley, LLC)
• NLRB Issues Approved Social Media Policy (Poyner Spruill LLP)
• Three’s Company: NLRB Issues Third Social Media Policy Report (McNees Wallace & Nurick LLC)

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