As appeared in the Human Resource of Central Ohio (HRACO) monthly newsletter
NLRB Issued its Third Social Media Policy Guidance Memorandum
The National Labor Relations Board recently issued its third Social Media memorandum. The memo is supposed to help employers understand what social media policies are deemed legal by the NLRB and is likely the result of employer reaction to the first two memos that left them wondering whether any meaningful social media policy could pass Board muster. Unfortunately, this third memo leaves us even more perplexed.
These are only NLRB guidelines and courts of law will likely render a final rule on social media policy language in the future. However, the NLRB governs employers with and without labor unions. So, if you’re an employer and you have a social media policy, the NLRB likely has the power to regulate that policy.
My labor relations article in HRACO’s April newsletter dealt with the NLRB and social media. That article included language that social media policies should and should not contain. My opinions in that article have not changed. This third memo adds some additional social media policy language considered both legal and illegal by the Board. Although there are more, here are a few of the examples that leave employers more confused than before:
Legal Policy Language
Illegal Policy Language
|Employees may be suspicious when asked to disclose confidential information.||Release of confidential guest, team member, or company information is prohibited.|
|Employees should not harm the image and integrity of the employer. Any harassment, bullying, discrimination, or retaliation that is not permissible at work is not permissible online even if it is done after hours, from home, and on home computers.||Offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline.|
|Respect all copyright and other intellectual property laws for the Employer’s protection as well as yours.||Get permission before reusing others’ content or images.|
The acting General Counsel of the NLRB (the same guy who keeps writing these “guidance” memos) provides what he considers to be a lawful, model social media policy:
Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate [Employer] policies, and with outside individuals and/or entities. If you’re about to publish, respond, or engage in something that makes you even the slightest bit uncomfortable, don’t do it.
But just because the acting General Counsel approves this policy today, does not mean that it is iron-clad. If you intend to use this policy, make sure that it is consistent with your othercorporate policies and consider including any of the other Board-approved language found in my article from HRACO’s April newsletter.
Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.