The NLRB Is Laughing All the Way to the Bank

Posted by Molly DiBiancaOn May 30, 2012In: Social Media in the Workplace, Union and Labor Issues

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NLRB's Acting G.C. Lafe Solomon issued his third report on social media today. (PDF).

And what a fervor it caused! What a frenzy! Twitter was all atwitter with excitement over the promise of some meaningful guidance on the interplay between the National Labor Relations Act (NLRA), and employers' social-media policies. I think it's safe to say that the tone around the blogosphere will slowed significantly by morning.

Why? Well, primarily because we've actually read the report. And, folks, the news is not good. In short G.C. Solomon has made one thing clear--if you are an employer, there is just about no way you can draft a policy that addresses employees' off-duty use of social media that you can feel confident will not potentially run afoul of the NLRA. Or at least of Mr. Solomon's interpretation of the NLRA.

My natural optimism prevents me from reviewing in detail the multitude of provisions that Mr. Solomon found to violate the NLRA. My fellow e-law bloggers, no doubt, will pick up my slack here. I'll give you just one so you have a little taste. Here's the first provision addressed in the memo that, according to Mr. Solomon, violates the NLRA :

[If you mention your employer or your employment in an online post,] don't release confidential guest, team member orcompany information.

Yes. You heard me right. That provision was found to be overly broad in violation of the NLRA. Oh, brother. Boy, oh boy! The NLRB is just killing it, right?!? It publishes three "reports," none of which are binding, none of which constitute precedent of any sort, and none of which have been reconciled by the smartest minds around. It could be said, in other words, that the three reports are worth a whole lot of nothing.

Yet, these three little reports arguably have caused more uproar than the last three employment-law decisions issued by the U.S. Supreme Court. They have effectively prevented numerous employers from implementing a social-media policy. They have, if nothing else, gotten our attention.

I, for one, am ready to move on. Unless and until the General Counsel publishes a report that a lawyer of average intelligence can translate into something useful, I am no longer interested. And what's the consequence of this brazen disregard? Not much. As I've posted previously, the risk of having a policy that is later found to be in violation of the NLRA is that you would have to change your policy and put up a posting about the change.

In the meantime, I'll continue to draft policies that come from the right place (i.e., education and prevention as primary goals), are only as restrictive as they need to be (i.e., no vague or overly broad language), and tie in other applicable workplace policies (e.g., anti-harassment, workplace violence, and reference requests). I'm willing to bet that I'll be in a small group and, if that's the case, the NLRB will be laughing the whole way to the bank.

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