Just when you thought it was safe to write a social media policy?

It’s almost summertime.  The kids are getting out of school and coming to work for you.  So you were probably thinking, time to update that social media policy to keep up with all of those multi-tasking wonder kids looking for summer jobs.  After all, we don’t want the Facebook generation to give away all of our company secrets, do we?  Well, the good old NLRB must have been thinking the same thing.  And they don’t seem to want you to write a new policy, in fact they don’t seem to want you to have your old policy.  On May 30, 2012, the Acting General Counsel of the NLRB issued a third report on social media cases.  This one focuses on  policies.

Here is the NLRB announcement in full:

NLRB Acting General Counsel Lafe Solomon today issued a third report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees.

The Operations Management Memo details seven cases involving such policies. In six cases, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful. In the seventh case, the entire policy was found to be lawful.

Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.

‘I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,’ Mr. Solomon said in releasing the memo. Two previous memos on social media cases, which involved discharges based on Facebook posts, issued in January 2012 and in August 2011.

The emphasis is mine, and the links should be live if you want to read the report.

Now, what that little announcement does not tell you is that the Acting General Counsel has, in my opinion, gone way over the line.  You see that red print up there?  He looked at seven policies and INVALIDATED AT LEAST PART OF ALL BUT ONE OF THEM.   Incredible.  Here is one highlight to get you started . . . and by started, I of course mean started banging your head against a wall. The NLRB has determined that an employer policy that says in part:

You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers.  [Employer] believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or other management-level personnel than by posting complaints on the Internet.  [Employer] encourages employees and other contingent resources to consider using available internal resources, rather than social media or other online forums, to resolve these types of concerns.

Dealing with this specific provision, the Acting General Counsel stated:

 We found that this rule encouraging employees “to resolve concerns about work by speaking with co-workers, supervisors, or managers” is unlawful. An employer may reasonably suggest that employees try to work out concerns over working conditions through internal procedures. However, by telling employees that they should use internal resources rather than airing their grievances online, we found that this rule would have the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.

Again, the emphasis is mine, mostly because I just can’t believe that they said this.