NLRB Issues Latest Round of Social Media Advice

(And this time, it doesn’t look good for employers.)

On May 30, 2012, Lafe Solomon, Acting General Counsel of the National Labor Relations Board, issued his third report on social media in the workplace.

The memorandum focuses exclusively on employer social media policies, analyzing seven such policies in detail for potential NLRB rule violations.

Contributor LXBN talks with Proskauer labor attorney Mark Theodore (whose analysis you can read below) about the issues covered in the latest report:

[Link: What Employers Can Learn About Social Media Policies from the NLRB’s Report]

Here’s a quick look at early reactions to the report from lawyers and law firms on JD Supra (we’ll continue to update this list as additional commentary comes in):

Just When You Thought It Was Safe To Write A Social Media Policy? (Warner Norcross & Judd)

“…the Acting General Counsel has, in my opinion, gone way over the line… He looked at seven policies and INVALIDATED AT LEAST PART OF ALL OF THEM. Makes one wonder if there is such a thing as a valid policy in the eyes of the NLRB.” Read on>>

Acting NLRB GC Issues Additional Report On Social Media – Somewhat Useful (Proskauer)

“The Board, of course, has summarily concluded that employees would interpret certain policies to inhibit their rights and so none of the examples give us much in the way of guidance. Leaving aside for a moment that there is no proof any employee has ever so interpreted (let alone even actually read) such a policy, employers should be mindful of the phrases commonly found in handbook policies that the Board will target as unlawful.” Read on>>

After NLRB’s Memo, Drafting Employment Policies Got Trickier (Pullman & Comley, LLC)

“I’ve had a little more time to digest the latest memo from the NLRB opining on what is and what isn’t appropriate for employers to have in their policies. And I’ve come to a very serious conclusion: It’s an utter mess… For employers, make no mistake: This is the NLRB’s attempt at an all-out, crazy assault on an employer’s ability to have policies that have any teeth to them. Even the most innocuous of policies can get shot down by the NLRB as being over broad and illegal.” Read on>>

NLRB’s Position on Social Media Policies Remains a Bungled Mess (Jon Hyman)

“As you might recall, I was very critical of Mr. Solomon’s 2nd report in its treatment of employer policies. Has the Acting GC solved any conundrums for employers with his latest missive? Can a company draft a social media policy with any teeth that the NLRB will conclude passes muster? Don’t count on it. In fact, Mr. Solomon’s latest missive is as galling of a piece of legal analysis I have ever read. It’s nothing short of intellectual dishonesty masquerading as hair splitting. How else can you explain the following razor-thin distinctions?” Read on>>

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