National Labor Relations Board ("NLRB") Acting General Counsel Lafe E. Solomon recently issued a third report reviewing seven NLRB decisions involving employer policies governing the use of social media. The report supplements two prior reports issued in January 2012 and August 2011 by the NLRB.
In the detailed decisions, the NLRB found policy provisions in six employer social media policies to be unlawful when they interfered with the rights of employees under the National Labor Relations Act ("NLRA"). The memo reviews one social media policy the NLRB found to be lawful.
The memo provides that ambiguous policies without limiting language or context are more likely unlawful, while "rules that clarify or restrict their scope by including examples of clearly illegal or protected conduct, such that they could not reasonable be construed to cover protected activity, are not unlawful." Further, the NLRB continued to find that inclusion of a "savings clause," providing a policy will be administered in compliance with the NLRA, will not cure an otherwise overbroad or ambiguous policy.
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