Well, on May 30, the NLRB has issued its third memo on social media and other workplace policies. I think the Board believes it’s trying to help employers understand what policy language they find unlawful that infringed on employee Section 7 rights, and those policies that pass the NLRB’s smell test. The trouble is, the smells are subtle. Sometimes we can’t distinguish the smells. Ok, enough on that analogy, but the thing is, the more I read the memos, the more confusing it gets.
As Eric Meyer (attorney and blogger on TheEmployerHandbook.com) noted in his blog today, the Board’s recent memo (similar to the previous two) is all over the place and filled with a number of inconsistencies. Here’s what Eric wrote:
- A requirement that employees “be honest and accurate” is ok (sample social media policy), but requiring employees to be “completely accurate and not misleading” online is unlawful because as long as the published information isn’t “maliciously false,” it’s all good. (p. 6-7). Understand the distinction? Me neither.
- A social-media-policy prohibition on sharing “Secret, Confidential or Attorney-Client Privileged Information” (p. 6-8) is ok, but various other restrictions on sharing confidential information (with a lower case “c” and “i”) sprinkled throughout the NLRB memo are no good. Are capitalized terms that special? Yes, I imagine that “Secret, Confidential or Attorney-Client Privileged Information” may be defined in some other policy, but maybe not. The Board memo is silent about that.
- “Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]” is ok (sample social media policy), but a prohibition on “disparaging or defamatory” comments is bad. (p. 16-17). My head is spinning.
Like Eric, my head is also spinning.
So, check out the memo at the NLRB memo and see what you think. The Board also provided a policy it feels passes all smell tests. So, if you want a policy, that is the place to start. Just remember these pointers:
1. All policies need to be customized to your workplace and should be reviewed by employment counsel. Not the attorney who handles your real estate deals.
2. Define key terms in the policy.
3. Be careful about absolutes (“we prohibit the posting of pictures showing any company logos, work environments, etc), the Board just doesn’t like them and will find most will restrict concerted activity.
4. A savings clause won’t necessarily save you. E.g., “nothing in this policy is meant to limit or restrict your rights to unionize, discuss wages and benefits, etc.” Make sure the policy language itself doesn’t limit your employee’s rights to organize.