NLRB Acting General Counsel Issues Enforcement Guidance On Social Media Policies

Author:Mr Lawrence DiNardo, Brian West Easley, Stanley Weiner, Willis J. Goldsmith, G. Roger King, George S. Howard Jr., F. Curt Kirschner Jr., E. Michael Rossman, Patricia A. Dunn and James S. Urban
Profession:Jones Day
 
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For the third time in less than a year, the Acting General Counsel ("AGC") of the National Labor Relations Board ("NLRB") has issued an Operations-Management Memorandum providing enforcement guidance on employees' use of social media and employers' social media policies. In the latest report issued on May 30, 2012, the AGC offered the clearest glimpse so far of what constitutes a lawful social media policy under the National Labor Relations Act ("NLRA")—attaching in full one policy that the AGC deems lawful and, at the same time, finding six other policies unlawful. See NLRB, Operations Memorandum 12-59 (May 30, 2012) ("OM 12-59"), available at http://www.nlrb.gov/publications/operations-management-memos. This latest Operations-Management Memorandum underscores the importance of having properly drafted social media policies in both unionized and non-union workplaces, since the same rules apply to all employers subject to the NLRA whether they are unionized or not. OM 12-59, together with the AGC's two prior reports and recent Administrative Law Judge ("ALJ") decisions on social media policies, makes several themes clear:

The AGC continues to consider social media issues an enforcement priority, having acted on numerous cases since his April 2011 directive requiring that all "[c]ases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter" be submitted to the NLRB's Division of Advice. NLRB General Counsel Memorandum 11-11 (Apr. 12, 2011) at 2. The AGC continues to find most employer social media policies overbroad and unlawful under the NLRA on the basis that employees could "reasonably construe" them as restricting employees' Section 7 rights to communicate with each other or third parties regarding wages, hours, and working conditions. In fact, of the 20 policies reviewed in his three reports, the AGC has found only four to be lawful. The AGC's numerous challenges to social media policies have met mixed success in litigation before ALJs of the NLRB, with one ALJ rejecting, just last week, some of the AGC's challenges to an employer's social media policy while finding other parts of the policy unlawful. Based upon the AGC's enforcement guidance, employers must carefully draft their social media policies to avoid broad language that employees could reasonably construe to prohibit protected activities, and employers must incorporate specific examples of prohibited conduct to make clear that the policies do not cover Section 7 activities. Including a disclaimer in the policy—simply stating that the policy does not apply...

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