I've now had a few days to digest the NLRB's latest foray into regulating social media in the workplace. I can sum up the NLRB's report in three words: What a mess.
In a mere 35 pages, the NLRB appears to have ripped the guts out of the ability of employers to regulate any kind of online communications between employees. The NLRB found the following facially neutral, boilerplate policies to be unlawful restraints of employees' rights to engage in protected concerted activities:
Some believe employers can save themselves from the NLRB's wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a "savings clause" in which the employer expressly told its employees that it would not interpret or apply its policy "to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities."
What policy did the NLRB conclude was lawful? A policy that limited its reach to social media posts that were "vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer's workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic."
What are the four takeaways for employers from this fiasco?
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