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On May 30, 2012, Lafe Solomon, the National Labor Relation
Board's (NLRB) Acting General Counsel (AGC), released a third
report on social media cases brought before the NLRB. This report
deals with seven different cases involving social media policies,
covering topics such as the use of social media and electronic
technologies, confidentiality, privacy, protection of employer
information, intellectual property, and contact with the media and
government agencies.
In the first six policies reviewed, the AGC concluded that at least
some of the provisions in the employers' policies and rules
were overbroad and, accordingly, unlawful, under the National Labor
Relations Act (NLRA). Importantly, the NLRB found that the savings
clauses in these otherwise unlawful policies did not save the
policies. Only the final social media policy reviewed by the AGC
was found to be entirely lawful.
In finding the final reviewed policy lawful, the AGC pointed to the
policies substantial use of examples of allowed and proscribed
behavior. Specifically, the AGC stated that "rules that
clarify and restrict their scope by including examples of clearly
illegal or unprotected conduct, such that they could not reasonably
be construed to cover protected activity, are not
unlawful."
Barnes & Thornburg's Labor and Employment Department is
studying the AGC's report and will provide additional analysis
and more practical advice in the coming days. In the meantime, you
can read the NLRB's report by clicking here.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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