More on the NLRB and Social Media Policies: 4 Ways to Violate Federal Law

There has been a lot written about the advice from the NLRB and its general counsel, Lafe Solomon, pertaining to social media policies.

The bottom line in this is pretty simple: the NLRB’s advice is “inconsistent, overreaching … (and) a hot tepid mess,” according to attorney and TLNT contributor Eric Meyer.

But Mark Toth, the chief legal officer for Manpower North America,says that employers need to worry about what the NLRB is saying about social media policies because “the NLRB ‘s position is that lots and lots (and lots) of provisions in most social media policies out there right now are unlawful.”

That’s why this article from Brian Heidelberger, partner and chair, Advertising, Marketing and Entertainment Law Practice of Winston & Strawn, as published in Advertising Age, is interesting because he lists a few “don’ts” that gleaned from the NLRB’s guidance that are actually a lot clearer and more specific than what the NLRB had to say.

Heidelberger writes in Ad Age that:

… As a starting point, the NLRB hates those parts of your policy that are ambiguous and overbroad (yes, that’s you, everyone). I’ve seen enough policies to know that yours likely prohibits just about everything under the sun, so at the very least, make sure you add examples to clarify in the policy what’s actually prohibited. As lawyers, we like to cover every contingency, but in truth, that’s just what the NLRB wants us to avoid here.”

Here are a few of the things Heidelberger listed that the NLRB wants you to consider has you review your own company social media policies:

Does your policy prohibit or restrict “friending” other employees? Workers have the right to communicate with each other. So a statement encouraging employees to “think carefully about ‘friending’ co-workers” was considered illegal.
Does your policy prohibit your employees from posting about the company? Under federal law, employees have the right to criticize their company and how it treats its workers (I am not recommending this!). So, a policy was deemed illegal that broadly stated that a company’s employees couldn’t talk about the company. Employees also have the right to discuss legal claims they may have against their employer. So a policy which simply stated that employees couldn’t comment on legal matters was also illegal.
Does your policy prohibit talking about co-workers? Workers have the right to discuss wages and conditions of employment with others, and with each other, so a blanket prohibition over talking about co-workers was considered illegal.
Does your policy prohibit using social media while at work? The NLRB indicated that completely prohibiting employees from using social media with employer resources or on employer time was unlawful, because employees have the right to engage in certain activities on the employer’s premises during non-work time and in non-work areas.

This is just part of Heidelberger’s list of the ways your company’s social media policy can violate federal law. Go to his commentary in Ad Age for the complete list.