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NLRB: Social Media Policy Can't Be Too Restrictive

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By Betty Wang, JD on July 30, 2013 8:58 AM

The National Labor Relations Board (NLRB) has a thing or two to say about social media policies at work. These days, it's no huge surprise that social media use is pervasive in the workplace, in addition to being used during one's personal time as well.

However, despite the many workplace policies regarding social media in the workplace, some of them apparently go a bit too far. In an NLRB memorandum obtained by Reed Smith's, an NLRB lawyer advises that enforcing certain too-restrictive social media rules in the workplace may be a violation of federal labor laws.

What does the NLRB's guidance mean, exactly?

Some Giant Advice

The memo stems from a case involving Giant, a supermarket chain, Fox Business reports. Giant had implemented a policy against employees making posts on social media that included the store's logo or any information about the workplace.

The NLRB memo, in turn, stated that it's unlawful to prohibit workers to post "confidential" or "non-public" information about the employer. Without further definition, these terms are too vague, and could be construed to prohibit worker discussions about their working conditions, which must be allowed, the NLRB said.

The memo reiterated that employees are allowed to, on their personal social media accounts, discuss "concerted activity" under Section 7 of the NLRB. Generally speaking, concerted activity refers to anything between employees that's related to improving the terms, conditions, and details of their employment. This includes factors like their working conditions and even their wages.

Effect on Employers

However, this doesn't mean that anything work-related can be discussed freely on social media without any repercussions.

It may seem as though the NLRB's memo allows for nearly anything loosely work-related to be discussed on social media. However, this only refers to the actual policy in the workplace.

Under the doctrine of at-will employment, however, an employer can still freely terminate an employee for nearly whatever reason they see fit, so long as it's not discriminatory and not related to protected "concerted activity" among workers. So actions like an employee bad-mouthing his boss or advising others not to purchase the company's products can be legitimate reasons for letting a worker go.

If you have specific quesitons about how the NLRB's memo may affect your social media policy, it may be best to consult an experienced employment lawyer near you.

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