What Clinton, Um, Trump Means For Social Media and Employment Law

by Cozen O'Connor
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This was supposed to be posted last Wednesday morning. All kinds of great insight into what a(nother) Clinton White House would mean for social media and employment law. Then came the required post-election cut and paste. Well, really the cut.

So I waited until Saturday Night Live made it official over the weekend, and can now begin to opine on what a Trump White House might mean for social media and employment law. So let’s start with one of the biggest protagonists of the last two-act (term) play: the NLRB. If you have read this blog before (or, really, virtually anything having to do with employment law), you know that the NLRB under President Obama has been uber aggressive – and, some might say, extreme – over the past 8 years when it comes to coming down hard on employers for their social media policies and other restrictions imposed on employee behavior. Policies, practices, and employment agreements that have been employer staples for decades have been struck down by the NLRB under the guise of a broad, pro-employee interpretation of “protected concerted activity.”

Ironically, just on Tuesday (Election Day), the three-member NLRB issued a decision in In re: Component Bar Products that actually/still/unbelievably faulted the employer for maintaining workplace rules that prohibit “insubordination” and prohibit “boisterous and disruptive activity.”  I get the NLRB’s desire to avoid overbroad and undefined terms that might prevent or chill employees from engaging in protected activity. But employers can’t prevent insubordination or boisterous activity through social media activity or in person?

So, what to make of a Trump administration? The NLRB is a five-member federal agency that currently has two vacancies. Of its three members, two are Democrats whose staggered terms end in August 2018 and December 2019. The Democratic General Counsel of the NLRB ends his four-year term in November 2017, while the lone Republican member ends his term in December 2017. The NLRB’s Senate-confirmed members and General Counsel (the one who “prosecutes” the NLRB charges) are the ones responsible for setting the agency’s policies and priorities. There will undoubtedly be a changing of the guard at the NLRB. Which takes us to…

Employer Take Away:   What should you as an employer take away from this development?

It was a lot easier to predict what a(nother) Clinton White House would likely have meant for the next four or eight years at the NLRB. It is much more difficult to predict a President Trump impact since he has been somewhat less than clear on his approach to these types of issues specifically. So in some respects, we are just guessing this early.

Still, the NLRB’s policies and priorities are very much subject to the shifting winds of changing political administrations, which means that a President Trump administration will have an opportunity to shape a Republican-dominated board when he is able to make his appointments. It may take some time, however, so employers are cautioned not to throw their hesitation out the window and go back to being trigger happy with making decisions based on an employee’s social media activity.

But when Trump does get to his NLRB appointments, it is very likely that employers will see a less aggressive approach to social media policies and employment agreements, and perhaps a more pro-employer stance on the agency’s rulings regarding the regulation of employee use of social media. Perhaps.

Or maybe not.

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Cozen O'Connor
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