Wednesday, September 26, 2012

NLRB and Social Media Policy Savings Clauses

Yesterday, I provided some Lawffice Links relating to a recent NLRB decision ruling that a social media policy prohibiting defamation was overly broad (the Costco decision). A friend emailed me to remind me that the employer might have been able to save the policy with a "savings clause" or "disclaimer" informing employees of their NLRA rights. A savings clause or disclaimer is just an additional clause stating that the social media policy will not be interpreted or applied so as to prohibit NLRA-protected concerted activity.

The NLRB decision in Costco provides at least two clues that the NLRB places some value on savings clauses. First, the NLRB noted:
[T]here is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.
Hmmm, a savings clause would have done that. The decision also notes:
[T]he Respondent’s rule does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to -- among other things -- certain protected concerted activities, such as communications that are critical of the Respondent’s treatment of its employees.
Again, I think a savings clause would have plugged that hole. However, let's not pretend that savings clauses provide an impenetrable shield - as I blogged previously (over at ELInfonet), such disclaimers have faced challenges of their own.