NLRB Further Limits Employer’s Ability to Limit Employees’ Social Media Use

Posted June 25, 2012 by Matt Sherwood

Posted 06/25/2012 by Matt Sherwood

On June 5, 2012, the National Labor Relations Board (“NLRB”) issued its third report in the last year from its General Counsel, again explaining the federal agency’s position on employers’ ability to regulate employees’ use of social media. In the 24-page report, the NLRB continued its ever-expanding list of limitations on employers’ rights to regulate such information. Given the additional limitations, most employer’s social media policies no doubt contain language that would now be considered unlawful by the NLRB’s General Counsel, so employers averse to risk should get ready, once again, to revise their policies. The concern over social media policies is driven by Section 7 of the National Labor Relations Act (“NLRA”), under which employees—regardless of union membership—have a right to engage in protected, concerted, activity for their mutual aid and protection.  The NLRB Report analyzes several different social media policies and comments on whether the provisions contained therein are unlawful because of their potentially chilling effect on employees’ Section 7 rights. 

The Report discusses several different polices that the NLRB considers to be “unlawful” for the policies’ likelihood of limiting employees’ rights under Section 7 of the NLRA. A few examples of “unlawful” policies include:

  • Policies that do not allow employees to disclose confidential company information in social media;
  • Policies with a blanket prohibition against accessing social media during working hours; and
  • Policies that prohibit language that is “offensive, demeaning, abusive or inappropriate.”

The Report again changes the landscape of employment law in this ever-changing arena. Social media continues to be one of the hottest areas of employment law. If a company has not had their handbook or policy manual reviewed within the very recent past, there is a substantial chance that the company’s policies will not be in compliance with the NLRB’s rules. Stay tuned for additional information as we at the Underwood Law Firm continue to monitor the impact of the NLRB’s rules in this area.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.