gripe with impunity. The decisions em- phasize that posts which merely reflect an individual's contempt, or are simply egregious, with no connection to a shared concern about working conditions, likely are not protected speech. Concerted activity loses protection if it isn't just inaccurate, but "maliciously false" or "opprobrious," reflecting a desire to harm. troubling because they include familiar provisions that employers rely on to cover common business concerns. In Hispanics United, the NLRB ruled the employer's "zero tolerance" bullying policy unlawful under Section 8, stating that "legitimate managerial concerns to prevent harassment do not justify poli- cies that discourage the free exercise of Section 7 rights..." suggesting that any policy that is so broad or vague that it may not be clear that it is not intended to restrict Section 7 rights is unlawful. However, rules that clarify and re- strict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are less likely to be unlawfu1. Examples of lawful policies include: 1. Prohibiting: protection. "working time." to communicate. tied to a specified business rationale. Scrutiny cussed in the May 2012 Report and the only policy found lawful because it is well-crafted, direct, uses "everyday" lan- guage, provides definitions supported by examples, and addresses legitimate goals with respect to social media, enabling employees "to differentiate unacceptable behavior from protected concerted activi- ties" with no unlawful "chilling" effect. Although any policy should be employer-specific, examining Walmart's policy 1. Tailor policy to company's culture. terms of employment. Employers and practitioners should continue to monitoring developments and regularly review and update social media policy as necessary. federal or state governments or those who employ only agricultural workers or are subject to the Railway Labor Act. 3 The Supreme Court explained that even "the most re- a deliberate or reckless untruth." Linn v. Plant Guard 383 U.S. 53 (1996). 5 NLRB, General Counsel: Memoranda OM 11-74 (Aug. (May 30, 2012). Available at: www.nlrb.gov/reports- guidance/operations-management-memos. 7 358 NLRB No. 164 (Sept. 28, 2012) 8 359 NLRB No. 37 (Dec. 14, 2012) and No. 96 (Apr. 19, decisions which are issued after a party appeals the decision of an ALJ. ments to the NLRB panel were unconstitutional and therefore invalid. The ruling has the potential to void all NLRB decisions made in 2012. It will be appealed to the Supreme Court, but it is unclear when or how the issue will be determined. Until then, as a practical matter, employers may want to consider social media jurisprudence as in effect and applicable. cases-decisions/advice-memos. unauthorized use, theft of publicity, invasion of privacy, and tortious interference. See Eagle v. Morgan (E.D. Pa. 2013), PhoneDog v. Kravitz (N.D. Cal. 2011), and Maremont v. Susan Fredman Design Group (N.D. Cal. 2011). access to private accounts. Facebook's terms of use prohibit disclosure of passwords. |