Social Media Policies. NLRB.

Good news for employers with a social media policy. It’s your time and it’s a new day. If you have implemented reasonable social media policies and workplace civility policies, your holiday present is a more employer-friendly National Labor Relations Board (NLRB).
Until recently, employers found the NLRB to be an unfriendly opponent.  When employers tried to regulate employee behavior, regarding social media, at almost every turn the NLRB struck down policies in violation of Section 7 and 8(a) of the National Labor Relations Act.  This occurred even when the employee’s behavior was deemed harassment and promoting incivility in the workplace.

NLRB Section 7 and 8(a)

Section 7 of the National Labor Relations Act gives employees the right to engage in protected concerted activity, which includes the right to organize, form, or join a union, bargain collectively, and discuss terms and conditions of employment. Section 8(a) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
In recent times, the NLRB has interpreted the sections broadly, allowing employees to behave in ways that advocated violence, insubordination, and the disclosure of the employer’s proprietary information.
In its December 14, 2017 decision in the Boeing Company the NLRB overturned existing precedent and ruled in favor of the employer.  Subsequently, on June 6, 2018, NLRB General Counsel issued a 20-page Memorandum (GC 18-04), which provides specific guidance to employers. Of particular interest to employers are helpful examples of policy provisions addressing the following:

  • insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
  • disruptive behavior;
  • protection of confidential, proprietary and customer information or documents;
  • prohibiting defamation or misrepresentation;
  • restricting use of the employer’s logos or other intellectual property;
  • requiring authorization to speak for the employer; and
  • banning disloyalty, nepotism or self-enrichment.

So if you are an employer, get busy drafting those social media policies, but make sure they can pass the the NLRB General Counsel’s test. Until next time, I’m Attorney Francine Ward. Check out more useful legal information on my Facebook Law Fan Page, Twitter Law Page, Google+, and my Instagram Page.

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