Change is at the front door for the effect of social media on employment law, demanding that employment/labor lawyers, employers, and employees alike respond yesterday. Through their production of a guidance memoranda, the National Labor Relations Board’s (NLRB) Office of General Counsel, has taken charge and are the first ones to answer the call for direction on matters concerning employment law and social media.
On May 31, 2012, the NRLB released its third guidance memorandum on social media in the workplace. The third report was issued on social media cases brought to the agency, this time focusing primarily on policies controlling the use of social media by employees. The NRLB General Counsel Lafe Solomon, in reference to the report, stated “I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area.”
The memo detailed 14 cases different cases- 6 of the cases had certain lawful provisions but weren’t entirely lawful, and in one case, the company was deemed to have an entirely lawful policy. Provisions are considered unlawful when they interfere with employees’ rights under the National Labor Relations Act – like discussing wages and work conditions.
In dissecting what employers are allowed to do, the NRLB’s third guidance memoranda includes an example of acceptable social media policy, which including a variety of warnings such as “you are solely responsible for what you post online “ or “Before creating online content . . . Keep in mind that any of your conduct that adversely affects your job performance, . . . may result in disciplinary action up to and including termination.”
Some argue that the NRLB’s provisions are too overreaching and that, looking at the judicial trend, they will be struck down in court. Others contend that these provisions are on point and are exactly what the employment/labor legal community needs right now.
Regardless of which camp you find yourself in, it is important to note that until this issue is examined and decided on in the judicial system, the NRLB is the only voice on the issue.