Thursday, May 31, 2012

NLRB Releases Memo on Social Media Policies

If you follow me on Twitter (@PhilipMiles) then you've known this was coming for the past two weeks - yesterday, the NLRB General Counsel's office released a memorandum covering employer's social media policies. You can download the memo here: Report of the Acting General Counsel Concerning Social Media Cases.

Frankly, it's difficult to discern any takeaways other than: "wow, these guys can find a problem with just about any policy." At one point, they take issue with a policy prohibiting "[o]ffensive, demeaning, abusive or inappropriate remarks" because it "proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees." The memo later describes a prohibition on disclosure of "confidential or proprietary" information as overbroad.

The memo also once again notes that a "savings clause" will not actually save an overly broad policy.

Other employment law bloggers are adding their commentary (and sometimes harsh criticism): Jon Hyman describes the memo as "intellectual dishonesty" and a "bungled mess" (tell us how you really feel!); Dan Schwartz claims the NLRB is "redefining" previously acceptable policies on- and off-line; and Molly DiBianca tells us she is not interested "until the General Counsel publishes a report that a lawyer of average intelligence can translate into something useful." If you have another take, please feel free to drop a comment and/or post a link to your commentary.

UPDATE: How could I have missed Eric Meyer's analysis, calling the memo a "hot tepid mess"?

The memo does include one policy that received the NLRB's blessing (see pp. 22-24 for the full blessed policy). If employers want to follow the NLRB GC's view (which employers are not necessarily bound to do) then there is at least one policy that should work.


  1. I think they can handle it. Between Boeing, the election rules, and the posting requirement they must have pretty thick skin by now.