As I promised here when the news broke about the National Labor Relations Board (“NLRB” or “Board”) settling its so-called “Facebook firing” case, I have finally gotten around to putting my thoughts about it on paper (actually, on the internet). This is a summary of my thoughts on this topic. A link to my full article can be found at the end of this post.
My basic thought is that in dealing with employer social media policies, the NLRB has not really departed much (if at all) from its precedent dealing with employer restrictions on employee speech. In my view, we can rely on past Advice Memorandums issued by the Board’s Division of Advice, and fashion social media policies that do not run afoul of the NLRA yet achieve employer goals of prohibiting generally abusive employee conduct online.
As with most employer policy language restricting employee speech, the context of the objectionable language is key. The language that is usually at issue in these cases is typically a variant of the following:
“Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”
This particular example was actually in the employer’s social media policy in the Facebook firing case. However, more broadly speaking, in drafting a policy that includes similar language, the goal of the policy drafter must be to draft the overall social media policy in such a way as to minimize the likelihood that a reasonable employee would interpret the above language to apply to Section 7 activity. I suggest that there are two ways to do that, and I would do both. Specifically, I would (1) include the above prohibitions within a longer list of other employee misconduct, and (2) insert disclaimer language specifically addressing Section 7 issues. Given past Advice Memorandums on social media policies, taking these two steps can go a long way in reducing the likelihood that the Board would find that an employee can “reasonably” interpret the policy to restrict Section 7 rights.
For a more in depth look at this issue, go to my full-length article by clicking here: HireCentrix .
A special thanks to Karen Mattonen of HireCentrix.
DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.