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.”