NLRB Division of Advice OKs Social Media Policy's Conduct, Courtesy, Respectfulness, and Spokesperson Disclaimer Rules, Pans Confidentiality and Honesty Rules | Practical Law

NLRB Division of Advice OKs Social Media Policy's Conduct, Courtesy, Respectfulness, and Spokesperson Disclaimer Rules, Pans Confidentiality and Honesty Rules | Practical Law

The Office of the General Counsel of the National Labor Relations Board (NLRB) has released an advice memorandum addressing whether provisions of an employer's social media policy are lawful.

NLRB Division of Advice OKs Social Media Policy's Conduct, Courtesy, Respectfulness, and Spokesperson Disclaimer Rules, Pans Confidentiality and Honesty Rules

by Practical Law Labor & Employment
Published on 17 Sep 2019 • USA (National/Federal)
The Office of the General Counsel of the National Labor Relations Board (NLRB) has released an advice memorandum addressing whether provisions of an employer's social media policy are lawful.
On September 12, 2019, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released an advice memorandum dated July 3, 2018, addressing the legality of various provisions of an employer's social media policy under the Board's decision in The Boeing Co. and other applicable Board law (365 N.L.R.B. No. 154 (Dec. 14, 2017).
In the memorandum (Comprehensive Healthcare Management Services, LLC d/b/a Brighton Rehabilitation), Advice concluded that:
  • The employer placed a disproportionate adverse impact on its employees' NLRA rights, and violated Section 8(a)(1), with its provisions that:
    • prohibited employees from posting inaccurate or false, rather than "maliciously false," information about the employer; and
    • required employees to keep the employer's policies and procedures confidential, which employees reasonably would read in context to include employment terms and conditions.
  • The employer provided legitimate justifications for those social media policy provisions concerning conduct, courtesy, respectfulness, and not representing oneself as a company spokesperson; these policies did not violate Section 8(a)(1).
The practical implications of this decision are as follows:
  • Advice memoranda are not binding precedent from the NLRB.
  • However, advice memoranda provide insights concerning:
    • which kinds of unfair labor practice (ULP) allegations the NLRB General Counsel is likely to prosecute;
    • what liability theories the General Counsel is developing and pursuing; and
    • how the General Counsel is extending, minimizing, combining, or parsing precedent to support prosecuting or dismissing those types of allegations and liability theories.