Common social media polices. Guess which ones are actually unlawful.


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All right, Einstein.

Let’s test your social media policy savvy.

Earlier this month, the National Labor Relations Board’s Office of General Counsel issued an advice memorandum addressing your favorite topic: intermittent FMLA leave administration social media policies.

(Editor’s Note: I’m pretty sure that social media policies were a creation of the “employment illuminattorneys” to gin up ways to market and sell handbook and policy updates. ***ducks lightning bolt*** Just kidding.)

Three categories of rules.

The OGC memo addressed several common social media policy provisions, each of which it evaluated under the three-category test that the Board established a few years ago in the Boeing Co. case.

Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  Examples of Category 1 rules are those requiring employees to abide by basic standards of civility.

Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.  An example would be a rule that prohibits employees from discussing wages or benefits with one another.

Quiz time.

Ok, let’s how well you do. Take the quiz here.

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