Employers Should Carefully Craft Social Media Policies

By Keith Overholt

The National Labor Relations Act protects employees’ rights to engage in protected concerted activity.  Broadly, this means employees have the right to discuss the terms and conditions of their employment including wages, fringe benefits and working conditions.  An employee has this right regardless of whether there is a union in the work place.

In an effort to be relevant in an ever decreasingly union work environment, the National Labor Relations Board has decided that employer restrictions on employee use of social media may infringe on employees’ rights protected under the NLRA.  Currently, the NLRB reports that it has over 100 unfair labor practice charges pending against employers based on their social media policies.  Last month, the General Counsel for the NLRB issued an Advice Memorandum in which it found an employer’s social media policy not to violate the NLRA.  The Memorandum provides guidance as to how to an employer may lawfully limit its employees’ use of social media.  If a policy is ambiguous or does not contain limiting language or context that would clarify to employees that the policy does not restrict their protected rights, the NLRB will assert it is unlawful.  Employers must carefully craft their social media policies to stay out of the crosshairs of an NLRB looking to expand its influence.

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