[authors: Denise M. Keyser, Mary Cate Gordon]

The National Labor Relations Board’s spotlight on social media cases continues. Less than two weeks after the NLRB issued its first decision concerning a social media policy, an NLRB Administrative Law Judge (ALJ) declared overbroad part of another policy, saying it violated the National Labor Relations Act.

Applying the rationale developed in three groundbreaking reports by the NLRB’s Acting General Counsel over the past year, and the Board’s own September 7 Costco decision, the ALJ concluded that the social media policy in question could be interpreted to “chill” employee exercise of the right to engage in protected, concerted activity (such as group protests of working conditions or other efforts to address work-related issues), a right the federal law guarantees to union and non-union workers alike.

In EchoStar Corp., the ALJ found overbroad a prohibition against “disparaging or defamatory comments” about the company, its employees, customers, and their products/services because the ban could be reasonably interpreted to prohibit work-related complaints protected by the law. While an employer may prohibit “defamatory” comments, the broader rule against “disparagement" went too far. The ALJ concluded that the policy’s “savings clause” (which directed employee questions to the human resource department and advised that applicable law would control) did not rescue the rule.

The ALJ in EchoStar also reviewed other employer rules, finding overbroad policies limiting employee contact with the media; a requirement that employees maintain confidentiality in company investigations; and a prohibition against insubordination, to the extent that this term was defined to prohibit activities that “undermine” the company. In all of these rulings, the ALJ again works within recent (and sometimes controversial) Board precedent and guidance.

Ballard Spahr’s Labor and Employment Group routinely assists employers in NLRB compliance and in drafting social media policies. If you have questions or concerns about social media in the workplace, please contact Denise M. Keyser, 856.761.3442 or keyserd@ballardspahr.com, Mary Cate Gordon, 856.761.3464 or gordonmc@ballardspahr.com, or the lawyer in Ballard Spahr's Labor and Employment Group with whom you work.