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Breaking: New NLRB Guidance on Social Media Policies

Posted in Human Resources (HR) Compliance, Labor Law & NRLB, Social Media

The NLRB today released new guidance on what is appropriate for employers to include in their social media policies.  You can download the guidance here.

I’ll have more on the guidance in a post later but in my quick read of the guidance, I was struck by three things:

1) Employers that have attempted to define bright-line rules for social media policies are going to have a lot harder time defining those rules concisely.  Even rules that seem innocuous are getting shot down by the NLRB.  For example, a policy encouraging employees to resolve concerns by talking with co-workers or boss about work is unlawful, according to the NLRB.

2) The NLRB is redefining not only social media policies, but other policies that employers have long since believed were legal.  Those policies prohibiting employers from sharing “confidential” information? No good, says the agency. 

3) The NLRB is again taking a strident view that “savings clauses” do not cure an otherwise faulty (in the NLRB’s view) policy.

Importantly, we really haven’t seen a challenge to the NLRB’s views in the courts yet.  Time will tell if the NLRB is overreaching.