September 26th, 2019
Fiona Ong at Shawe Rosenthal
Wait! What Does the NLRB Think About Social Media Policies?!!!
As those of you who pay attention to the National Labor Relations Board know (which should be all employers, since the National Labor Relations Act applies to unionized and non-union employers alike), the issue of social media policies is an area particularly fraught with confusion. In many circumstances, the Board has found such policies – or certain provisions in such policies – to unlawfully restrict employees’ rights under the Act to communicate about the terms and conditions of their employment. Thus, we labor practitioners rabidly follow each pronouncement of the Board or its General Counsel on this issue, trying to ascertain the legal parameters of such policies.
In 2012, management lawyers like us – and our clients – heaved a great sigh of relief because the then-Acting General Counsel, Lafe Solomon, issued Operations-Management Memo 12-59. In that memo, the GC reviewed Walmart’s social media policy and stated that,
I have concluded that the entire social media policy, as revised, is lawful under the Act, and I have attached this complete policy. I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area.
Great joy and celebration ensued!!! We all immediately adopted the Walmart policy as our model policy, and blithely moved forward in the secure knowledge that this policy was fine. It was lawful. It was a point of certainty in an uncertain landscape.
I was reviewing an Office of General Counsel advice memo that had just been released in September 2019. Advice memoranda contain the recommendations of the OGC to the Board on specific issues. Unless the positions are formally adopted by the Board in an opinion, they do not constitute Board law, but nonetheless provide some insight into what the Board might be thinking. This one, Comprehensive Healthcare Management Services, LLC d/b/a Brighton Rehabilitation and Wellness Services, had been originally prepared in July 2018 and addressed provisions of an employer’s social media policy, finding some to be lawful and others unlawful. I was particularly interested in the unlawful ones. But, as I was reading the unlawful provisions at issue, I began to have a sinking feeling. A bad feeling. A horrible feeling. The language looked … familiar.
With fear in my heart, I pulled up the Walmart policy. The same policy that had been blessed by the General Counsel all those years ago. The same policy that thousands of employers, including many of my clients – at my insistence – have adopted in the belief that this was a lawful policy.
IT WAS THE SAME LANGUAGE.
IT WAS THE SAME POLICY.
AND NOW, PARTS OF IT WERE UNLAWFUL!!!
Most bizarrely, the current memo seemed to have no knowledge of the existence of the Operations Memo. It does not mention the Operations Memo at all. It certainly does not acknowledge that this very same language now being found unlawful had previously been held out as lawful. Hello? Are the folks in the OGC paying attention to prior pronouncements from that office? Shouldn’t they?
So what now? I frankly don’t know. The Board, to my knowledge, has not adopted the advice given in the current advice memo. But does this suggest that a copycat Walmart policy may, in some future Board opinion, be found unlawful? I guess it’s possible.
Damn. We plunge back into the pool of uncertainty.