Washington Labor Law Blog: Insights on the Law for Washington Employers

Category Archives: NLRB

NLRB guidance on acceptable Social Media policies

National Labor Relations Board Acting General Counsel Lafe Salomon today issued a third report on social medial cases brought before the NRLB. The report details seven cases that came before the Board and identifies which policies the Board found unlawfully overbroad and which lawful. The NLRB rules apply to both union and non-union employers.

Whether a policy is acceptable is a very fact-specific question and the report details the facts that caused the Board to reach its decisions. But here are a few general guidelines gleaned from the report:

  • The key issue is whether the policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Rules generally will be deemed unlawful when they are ambiguous and contain no limiting language or context making clear to employees that the rule does not restrict Section 7 rights.
  • Prohibiting disclosure or discussion of “confidential” information is likely overbroad without language or examples to make clear the policy does not apply to discussions of terms and conditions of employment.
  • Prohibiting all posting of the corporate logo is overbroad because it could restrict, for example, an employee posting a photo of picketing employees carrying a sign with a corporate logo.
  • Requiring employees to come forward with questions about whether a post is acceptable is overbroad if the policy arguably covers Section 7 activity because employees cannot be required to ask permission as a precondition to engaging in Section 7 activities.
  • Prohibiting employees from commenting on legal matters is overbroad because it restricts discussion of potential claims against an employer.
  • Although employers can suggest employees resolve disputes through internal methods like talking to managers, employers cannot require employees to use such procedures rather than post their grievances online.
  • Including a “savings clause” stating that the policy will not be construed in a way to restrict Section 7 rights will not cure an otherwise unlawful policy.
  • A policy prohibiting “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours from home and on home computers” is lawful.

Perhaps the best part of the report is that it includes a policy that the Board found lawful in its entirety. The policy is a helpful example that employers can use when crafting their own policies.

If you would like assistance in drafting a specific policy for your company, we would be happy to help you.

NLRB Advice Memo Concludes Facebook Post Not Unlawful

In another in a series of advice memoranda from the NLRB regarding social media, the NLRB concluded the discharge of a crane operator because of his Facebook did not violate the NLRA because there was no protected concerted activity.  The Advice Memorandum, regarding Helser Industries, is here. A co-worker of the crane operator informed a… Continue Reading

New Rule Requires Notice of Rights under the NLRA

Today the NLRB issued its final rule requiring that employers subject to the NLRA post a detailed notice regarding employees’ rights under the Act.  The notice sets out a detailed description of employee rights under the NLRA, consequences for violations of those rights, and how to contact the NLRB regarding questions or violations.  The final rule,… Continue Reading

EEOC Presentation on Social Media in the Workplace

You can download my PowerPoint slides from my Social Media in the Workplace presentation at the EEOC’s Annual Seminar in Seattle here. An online database of 177 social media policies is here. The NLRB Acting General Counsel’s summary of social media cases before Board is here. The U.S. Chamber of Commerce’s summary of social media… Continue Reading

National Labor Relations Board Expands Definition of Concerted Activity

A company recently implemented a new casual dress rule requiring that shirts be tucked in.  While waiting for a sales meeting to begin, one salesman asked the Vice President of Sales about the new policy.  Another salesman then made several statements to the VP including “It [the rule] is pretty restrictive.  You know, I might… Continue Reading