WORKPLACE POLICIES: NLRB offers long-awaited guidance on social media

1. Employers may prohibit employee "rants." Under the National Labor Relations Act, when employees converse with each other about their workplace conditions, they engage in "protected concerted activity." However, individual employee rants (e.g., when one employee posts inappropriate comments without engaging in dialogue with other employees), are not protected under the Act. And the NLRB has expressly ruled that employees may be disciplined or terminated for engaging in such public rants. Prohibiting this behavior in a social media policy does not violate the Act as long as it does not chill protected speech. 3. Savings clauses are recommended, but may not win the day. A "savings clause" is a statement such as "[n]othing in this policy should be construed or applied to prohibit employees' rights under the National Labor Relations Act." These clauses are valuable, and it is wise to include them. That said, recent decisions have held that it is unreasonable to expect employees to understand the Act well enough to know what provisions of a policy may not apply. 5. Generic or overly broad "courtesy clauses" should be avoided. General prohibition of the use of colorful language, distasteful critiques and unseemly remarks in social media (otherwise known as "courtesy clauses") may be construed to restrict employees' rights to publicly criticize their employer. The NLRB has held that courtesy clauses violate the Act. Employers may encourage employees to refrain from making insulting remarks or engaging in hateful speech in social media. However, employers may not impose wholesale restrictions.