The Wisdom Of Solomon

On May 30, Lafe B. Solomon, the acting general counsel for the the National Labor Relations Board, issued the Board’s third memorandum on social media in less than a year. The issue that has generated the three memos is the extent to which an employer can issue workplace social media policies without infringing on the employees’ rights to engage in concerted activity. It’s a tricky question. And the frightening part is that, from the NLRB’s perspective, an ambiguous policy is unlawful. The employer doesn’t get the benefit of the doubt. So for example, where a company included this provision in its policy:

• Don’t release confidential guest, team member or company information …

The NLRB deemed it unlawful because employees would reasonably interpret that passage as prohibiting them “from discussing and disclosing information regarding their own conditions of employment.” See what I mean? Tricky. This memo is a must read for employers.