It seems that the National Labor Relations Board (NLRB) is continuing to extend its push into the regulation of social media in non unionized work places. According to this Morgan Lewis LawFlash, two recent cases (which may end up in the appellate courts) continue the Board’s assault on workplace social media confidentiality policies.
In the first case, involving Costco, the NLRB found that a whole section of the firm’s social media policy dealing with prohibition of posting confidential information to social media platforms was rendered invalid because it included a ban on posting “payroll information,” which the NLRB felt pertains to protected activity under section 8(a)(1) of the Labor Relations Act.
The second case, involving an auto dealer named Knauz, struck down the employer’s social media policy based on the following language:
[c]ourtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
The Board felt that the language would discourage employees from using social media for activities covered under section 7 of the Labor Relations Act, such as organizing a union or having discussions about work conditions.
The lesson? Make sure that your company’s Social Media policy passes muster with your legal team – and make sure your legal team knows about what the NLRB has been up to in this area. Social media has the potential to be an exfiltration vector for your organization’s confidential information; you don’t want to end up with a policy which is thrown out when you need it most.