NLRB General Counsel Issues New Guidance on Social Media
On May 30, National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon issued his third Report providing guidance and interpretation on what types of social media policies comply with or violate an employee’s rights surrounding protected, concerted activity. The complete report can be found at General Counsel Report.
In short, a policy violates the National Labor Relations Act (NLRA) if, as written, the policy explicitly restricts activities protected by the NLRA. If the policy does not specifically restrict protected activity, the NLRB makes the following assessment: (1) would employees reasonably construe the language to restrict protected activity; or (2) was the policy promulgated in response to union activity; or (3) has the employer applied the policy such that it restricted an employee’s exercise of protected activity?
In reviewing seven challenged policies, General Counsel Solomon opined that six of them violated some aspect of the NLRA. The single policy that was determined to not have violated the NLRA and received General Counsel Solomon’s approval gave clear indications, with examples, of what was permitted or prohibited under the policy. The benefit of examples, according to Mr. Solomon, was that employees could not reasonably construe protected activity as being prohibited by the policy. Specifically, General Counsel Solomon approved of the inclusion of the identification of “egregious” types of conduct that no reasonable employee could misconstrue as limiting to protected activity. Similarly, the policy provided sufficient examples of confidential information and trade secrets so that employees would be clear about what types of communications would be limited.
If you have or are considering implementing a policy that restricts some form of social media usage, contact your MSEC representative for assistance in this constantly evolving area.