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NLRB Drastically Revises Employer/Employee Social Media Policy Regulations

Hirsch Roberts Weinstein, LLP Logo Posted July, 2012
This article is written from information provided to WorldSweeper by the law firm of Hirsch, Roberts, Weinstein, LLP.

Recently, the Acting General Counsel for the National Labor Relations Board issued the agency's third report in the past year concerning social media issues in the workplace.

The purpose of this latest report was to address social media policies and to provide drafting guidance for employers. But far from providing comfort, the report has caused consternation for many employers who must now re-draft their existing social media policies in light of the Board's often surprising intertation of employee rights under Section 7 of the National Labor Relations Act.

Pop quiz: Which of the following policy excerpts does the NLRB now say are unlawful?

Answer: THE NLRB NOW SAYS ALL OF THE LANGUAGE BELOW IS UNLAWFUL!

Social Media Graphic
  • You may not make disparaging or defamatory comments about [Employer], its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services.
  • Don't release confidential guest, team member or company information.
  • You must be sure that your posts are completely accurate and not misleading.
  • Think carefully about 'friending' co-workers.
  • Unless you receive prior authorization from the Corporate Communications Department to correspond with members of the media or press regarding [Employer] or its business activities, you must direct inquiries to the Corporate Communications Department.
  • Remember to communicate in a professional tone.
  • You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers. [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet.
  • Don't comment on any legal matters, including pending litigation or disputes.
  • Employees should avoid harming the image and integrity of the company.
  • Communications with coworkers . . . that would be inappropriate in the workplace are also inappropriate online.
  • You should never share confidential information with another team member unless they have a need to know the information to do their job.
  • Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.
  • Make sure that any photos, music, video or other content you are sharing is legally sharable or that you have the owner's permission. If you are unsure, you should not use.
  • Employees, who receive unsolicited or inappropriate electronic communications from persons within or outside [Employer], should contact the President or the President's designated agent.

So, what should an employer do? Two things:

View Policy Graphic Adopt the NLRB's model policy. Fortunately, the report does contain a complete social media policy which the NLRB found lawful. At this point, the safest bet is to simply tailor the NLRB's model policy – which appears at the end of the acting general counsel's report – for your business. Use the graphic to the right to download this report in PDF format.

Proceed with Caution. This area of law has become a minefield for employers. We recommend that before disciplining an employee regarding social media issues you should first consult with labor counsel. One phone call could save you a lot of trouble at the NLRB. In the meantime be careful what you post on Facebook!

If you have questions or would like them to help tailor your company's policies with the NLRB's model policy, contact Peter J. Moser at pmoser@hrwlawyers.com or David B. Wilson dwilson@hrwlawyers.com

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