December 4, 2021

Volume XI, Number 338

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NLRB Rejects Another Social Media Policy

Last month in Echostar Technologies, L.L.C., 2012 NLRB LEXIS 627 (2012), an NLRB Administrative Law Judge adopted the Acting General Counsel’s rules regarding social media policies by finding that a social media policy interfered with Section 7 rights by prohibiting employees from posting “disparaging or defamatory comments” about the employer and from engaging in social media activities “on Company time.”  The Law Judge noted that the employer’s policy did not include a disclaimer to assure employees that the policy was not intended to interfere with their right to engage in protected concerted activity, and that in the absence of such a disclaimer the prohibition of “disparaging” postings could have a chilling effect on the right of employees to engage in robust discussions about their terms and conditions of employment, citing to the Board’s recent social media policy decision in Costco Wholesale Corp., 358 NLRB No. 106 (2012).  With respect to the rule prohibiting employees from using social media “on Company time,” the Law Judge found that the restriction was overbroad in the absence of any acknowledgment that employees remained free to engage in social media activities during break times or lunch periods.  This decision is further evidence of the Acting General Counsel’s intention to scrutinize employer social media policies.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume II, Number 280
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About this Author

Drinker Biddle’s Labor and Employment Practice provides businesses with a full range of employment-related legal services. Our clients include a broad range of foreign and domestic corporations, including industrial manufacturers, retailers, nonprofit educational and public institutions, health care organizations, financial services providers and consulting firms. For many of these clients, we serve as national counsel for labor and employment matters, especially in the retail and financial services industries. We are committed to providing real-time, real-world...

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