Monday, April 27, 2015

NLRB signs off on employer social media policy as legal

It’s not news that employer social media policies are on the NLRB’s radar. What is newsworthy, though, is when the NLRB considers a social media policy and concludes that it does not unlawfully infringe on employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

Consider, then, Landry’s Inc., decided last week by the NLRB, as newsworthy.

In that case, the NLRB considered the following social media policy:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.

The Board concluded that the policy was lawful:

Employees reading the Respondent’s social media policy could reasonably conclude … that they are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the Respondent or each other regarding job-related matters.… There is no restriction in the social media policy against posting “personnel” information or “payroll information,” or “wage-related information”; and obviously, posting information that in common parlance is generally understood to be personal such as, for example, matters regarding social relationships and similar private matters, could result not only in morale problems but could also constitute “harassment” to which the Respondent’s social media policy refers. It is readily apparent that such postings would likely create enmity among employees in the workplace which could, in turn, adversely affect the Respondent’s business.

Why is this newsworthy? Because, for years, the NLRB has urged for an expansive reading of employer policies, suggesting that a hypothetical parade-of-horribles that could lead to union-related, or other protected concerted, activity renders any facially neutral workplace policy unlawful. In Landry’s, the Board is adopting (at least in this case) a more reasonable, real-world reading of a social media policy to conclude that because no employee could reasonably read the policy, in context, to unreasonably infringe on employees’ rights.

This case provides a good illustration of the fine distinctions the NLRB is drawing between lawful and unlawful social media policies, and provides a good reminder of the need for all employers to routinely review your own social media and other workplace policies for compliance.

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