July 31, 2012
Setting the Example: The NLRB's Third Report on Recent Social Media Cases Encourages the Use of Examples to Clarify Social Media Policies
Author: Brett M. Pugach, Esq. and Joshua E. Knapp, Esq. View the article (pdf) While the National Labor Relations Board's ("NLRB") first and second reports on recent social media cases highlight instances of employers having unlawful and overbroad social media policies, its third report offers greater guidance to employers on what should be included in a social media policy to avoid violating employees' rights to discuss the terms and conditions of their employment ("protected employee rights"), as guaranteed by Section 7 of the National Labor Relations Act. The NLRB's third report strongly encourages employers to include examples for context and clarification with any policy that could be read to discourage employees from exercising their protected employee rights. In stark contrast to many policies that were found to be overbroad, policy provisions which provided specific examples of prohibited conduct were found to be lawful. In a case involving Wal-Mart, the company's entire social media policy, which included specific examples of prohibited conduct, was found to be lawful. Wal-Mart effectively drafted each provision of its social media policy, utilizing examples to: instruct employees to avoid postings that could be seen as malicious, obscene, threating or intimidating; clarify that harassment or bullying includes posts that are offensive or intended to harm one's reputation or contribute to a hostile work environment on an unlawful basis; and highlight specific prohibited confidential disclosures.