Court Rules Against Obama: Is Your Company’s Social Media Policy Now Totally Invalid?

In late January, a DC circuit court ruled that President Obama’s “recess” appointments to the National Labor Relations Board didn’t actually happen during a recess, and were therefore invalid. The ruling has huge implications for many workplace issues.

In early analysis, attorney Peter Felsenfeld of law firm Barger & Wolen reminds us that it will take months to understand the effect of this – however, anyone who has looked to the NLRB for social media workplace guidance should take note. The DC court ruling might completely change what you know to be valid.

In particular, two major NLRB social media decisions from 2012 may be impacted by this ruling. Attorneys on the HR Defense blog by law firm Akerman Senterfitt explain:

“In Hispanics United of Buffalo, the NLRB held that the discharges of five employees regarding posts made on Facebook violated the NLRA. The NLRB indicated that the Facebook posts and comments were protected under the NLRA because they concerned job performance, and because they involved the preparation of co-workers to defend against allegations of poor work performance.”


“In Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371, the NLRB held that Costco’s policy prohibiting employees from making statements that ‘damage the Company, defame any individual or damage any person’s reputation’ violated the NLRA. The NLRB reasoned that the policy was broad enough to chill employee rights under the NLRA…”

Savvy HR managers and executives have been building their workplace social media policies based on such NLRB rulings, especially focusing on the rules of what employees can and cannot say on Facebook etc — and how employers can respond as a result. All of that is now in question. Stay tuned to see how this goes — it’ll take months to figure out, and probably go all the way to the Supreme Court.

For a quick video analysis of the NLRB story, watch:

[Link: What Next for the NLRB?]

The updates:

Related reading:

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