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Employers Must Update Their Social Media Policies

White & Case (04/05/2012)

The National Labor Relations Act does not permit many of the provisions typically contained in social media policies, according to the second report on social media cases issued by the acting general counsel of the National Labor Relations Board earlier this year. “Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees,” the NLRB says. Union and nonunion employees who are not “supervisors” are permitted to act collectively for their mutual aid and protection, including addressing their terms and conditions of employment, and these are the discussions that are increasingly taking place on social media.

The report notes that a policy with a “savings clause,” which provides that it is not intended to interfere with employees’ NLRA rights, may still be overbroad. However, the report adds that the following is a type of policy that may be valid under the NLRA: “Prohibiting use of social media to post or display comments about co-workers or supervisors or the employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the employer’s policies against unlawful discrimination or harassment.”