The National Labor Relations Board continues to play an active role in the area of social media. In its latest move, the NLRB has issued yet another report reviewing recent social media cases. This new report, issued on May 30, follows up on two prior reports issued by the NLRB’s acting general counsel and summarizes recent NLRB decisions on the application of the National Labor Relations Act to employer policies on social media.
The latest memorandum, like the prior two, deals with a wide variety of policies. Of the seven cases the NLRB reviews in the memo, six involved policies the NLRB found to contain at least some provisions that were overbroad and thus unlawful under the NLRA. A common theme emerges from the board’s discussion and provides employers with important drafting guidance. In particular, employer policies, practices and rules that contain no limiting language or context to clarify to employees what conduct is prohibited will likely run afoul of the NLRA. Thus, it behooves employers to carefully craft social media policies to include examples of prohibited conduct, making clear to employees that they are not restricted in their NLRA rights, and in particular, their right to engage in protected activity under §7 (which protects the right to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection).
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