NLRB reports on overbroad, unlawful social media policies
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The National Labor Relations Board has issued another report on social media policies in which it cites six cases where it contends employers' policies and rules were overbroad and unlawful.
The latest report by Washington-based NLRB acting general counsel Lafe E. Solomon, which comes after previous reports issued in August 2011 and January of this year, also includes the revised social media policy of Bentonville, Ark.-based Wal-Mart Stores Inc., which it says is now lawful.
Mr. Solomon states in his preface that employee use of social media in the workplace continues to increase, “raising various concerns by employers and, in turn, resulting in employers drafting new and/or revising existing policies and rules to address these concerns.”
Mr. Solomon states, “I have concluded that at least some of the provisions in the employers' policies and rules are overbroad and thus unlawful under the National Labor Relations Act.”
In the report, for instance, Mr. Solomon cites a policy by an unidentified retailer that states employees should not “release confidential guest, team member or company information.”
“We found this section of the handbook to be unlawful,” said Mr. Solomon. It “would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment,” as well as those of others, which are “clearly protected” by the NLRB Act.
The report was criticized by Eric B. Meyer, a partner with law firm Dilworth Paxson L.L.P. in Philadelphia. “The distinctions that the acting general counsel makes between what violates the NLRB and what doesn’t don’t appear, at least to me, to be meaningful,” he said.
For instance, Mr. Meyer said the report states it is acceptable to share “secret, confidential or attorney-client privileged information,” but various other restrictions on sharing confidential information sprinkled throughout the NLRB are not.
Copies of the report are available here.
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