NLRB Decisions Suggest that Section 7 Disclaimer Could Save Vague Policies

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As readers of this blog surely are aware, the National Labor Relations Board (NLRB) has embarked on a crusade against overbroad social media policies and handbook language. Notably, in a trio of social media reports, the NLRB’s Office of General Counsel suggested that prohibitions on offensive, demeaning, and inappropriate comments or statements that could damage the reputation of the company or its employees are unlawfully vague and could have a chilling effect on employee communications critical of the terms and conditions of their employment. Moreover, the Office of General Counsel expressed its opinion that the inclusion of a Section 7 disclaimer would not save ambiguous policies. Recent decisions, however, signal that the NLRB has adopted a contrary position.

In September, the NLRB issued two decisions striking down two such anti-disparagement policies as overbroad. In both decisions, though, the NLRB was critical of the fact that the policy in question did not include language excluding protected Section 7 communications from its broad reach. While the NLRB rulings do not go as far to say that a disclaimer of restrictions on Section 7 activity would cure a vague policy, the NLRB’s analysis suggests that a disclaimer could be effective. Specifically, the NLRB reasoned that such limiting language would reduce the likelihood that employees could reasonably construe the policy as applying to protected concerted activity.

In light of these recent decisions and the flurry of NLRB activity in this area, both unionized and non-unionized employers should revisit their social media policies and employee handbooks to ensure they could survive the NLRB’s scrutiny. In policies prohibiting disparaging comments, whether at work or on social media, employers would do well to include specific examples of what is not allowed—e.g., language that is vulgar, obscene, threatening, harassing, or malicious. In addition, employers should incorporate into their policies language disclaiming an intent to interfere with an employee's Section 7 rights, including the right to discuss wages, hours, or other terms and conditions of employment.