An increasingly proactive National Labor Relations Board (“NLRB“) has struck down several common workplace employment policies followed by many private employers. Primarily, this is due to the Board’s expansive interpretation of Section 7 of the National Labor Relations Act (“NLRA”). Section 7 of the NLRA gives employees the right to engage in protected concerted activities regarding the terms and conditions of their employment. These rights apply to both unionized and non-unionized private employers with certain limited exceptions. The NLRB has been aggressive in striking down seemingly neutral policies that have been in place for years because it deems that they would tend to chill employees in the exercise of their Section 7 rights.
The NLRB decisions sparking the most recent discussions are those decisions deeming as unlawful, social media policies containing general provisions prohibiting employees from using online media to either disparage the employer, disclose confidential information, or refrain from posting photos of the workplace without company permission. The NLRB’s general counsel has even issued three reports outlining and addressing alleged abuses relating to social media policies. In its last report, the NLRB distinguished general statements in policies prohibiting posting defamatory material, from policies that include “examples of clearly illegal or unprotected conduct.” If the policy is too general, the NLRB rules them “ambiguous” and thus “chilling” of employee’s Section 7 rights. Policies that provide “sufficient examples of prohibited conduct, so that in context, employees would not reasonably read the rules to prohibit Section 7 activity” are deemed lawful.
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