May 30, 2012 / Law Alert

Chilling effect vs. protecting corporate confidentiality and reputation: NLRB releases third report on employer social media policies

On May 30, 2012, Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board, issued a third report addressing the issue of social media and the workplace. The Operations Management Memo, a copy of which is attached, focuses exclusively on seven different employer policies governing the use of social media by employees. The Report cites six cases where the NLRB contends that some parts of the employers’ policies and rules were overbroad and unlawful under the National Labor Relations Act and highlights examples of valid parts of those polices. The Report also includes the full revised social media policy of Wal-Mart Stores, Inc., which the NLRB concludes now is lawful, finally giving some definitive guidance on what constitutes a lawful policy for the purposes of the NLRB and NLRA.

The cited polices found to be unlawful give guidance on language that employers should avoid as the NLRB will view such language as having a negative or chilling effect on employees’ rights to discuss and disclose their own conditions and terms of employment. The NLRB also rejected a savings clause by which the employer attempted to separate its written policies from the NLRA. The employer included in its policy: “[This] Social Media Policy will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act).” According to the Mr. Solomon, such a statement “does not cure the ambiguities in the policy’s overbroad rules.” Most important though is the full example Wal-Mart’s compliant policy, which will now set the current bench mark in the area of employee social media policies.