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This post has been a long time coming... but at long last
it's the final post in the four-part
series on the NLRB's social
media memo. This post will address the NLRB's position on (what it views
as) overly broad social media policies.
Obviously, employers can't expressly ban social media speech protected by the
NLRA. Example: "No communicating with co-workers to address the terms and
conditions of your employment." That's a no-brainer - it violates the NLRA
because it prohibits concerted activity. The NLRB memo seems more concerned
with broad social media policies that can be interpreted to cover
NLRA-protected social media conduct.
The NLRB provided a few cases. One case included three overly broad clauses to
give you an illustration:
Rule 4 of the policy prohibited employees from using any
social media that may violate, compromise, or disregard the rights and
reasonable expectations as to privacy or confidentiality of any person or
Rule 5 prohibited any communication or post that
constitutes embarrassment, harassment or defamation of the hospital or of any
hospital employee, officer, board member, representative, or staff member.
Rule 6 contained a similar prohibition against statements
that lack truthfulness or that might damage the reputation or goodwill of the
hospital, its staff, or employees.
Well those all sound reasonable, what's the problem!? The
NLRB reasoned that the employer didn't define "privacy or
confidentiality" in Rule 4. And, the employer applied the rule to
terminate an employee who had complained and asked for details regarding a
co-worker's repeated absences disrupting work (aka the employer applied it to
concerted activity addressing workplace conditions).
OK, but what about Rules 5 and 6? "These included broad terms that would
commonly apply to protected criticism of the Employer's labor policies or
treatment of employees." So, according to the NLRB, they're overly broad
So, what's an employer to do? The employer could just get rid of the
supposedly overly broad policies. But - and I hope I'm not shocking you here -
there's plenty of embarrassing, harassing, defamatory, false, and
reputation-damaging social media conduct that an employer can, should and,
in the case of harassment, must prohibit. The lack of case law makes it
tough to know for certain what employers can do, but one common approach is to
include a disclaimer.
Molly DiBianca at the Delaware Employment Law Blog has a Sample
Social Media Policy worth checking out. She includes the following
Nothing in this Policy is intended to or will be applied
in a manner that limits employees' rights to engage in protected concerted
activity as prescribed by the National Labor Relations Act.
I think this will help save clauses that might
otherwise be overly broad. But we're in new territory here, so I'll keep an eye
out for new developments in the law and keep you posted.
For additional Employment Law updates, follow
this link to Phillip Miles' blog, Lawffice
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