|June 18, 2012|
Previously published on June 12, 2012
On May 30, 2012, the Acting General Counsel (“G.C.”) for the National Labor Relations Board (“NLRB” or “Board”) issued a new Operational Memorandum purporting to issue guidance on social media policies that it believes violate the Act. Memorandum OM 12-59, May 30, 2012. Unfortunately, most of the policies discussed in the Memorandum violated the Act. Indeed, the G.C.’s interpretation of the kinds of policies that violate the law is breathtaking in its scope. Key concerns like confidentiality, private, nonpublic data, defamation, disparagement, and employee-employer cooperation are all swept aside by a G.C. that assumes: (i) almost all policies are designed to hinder employees’ Section 7 rights, and (ii) employees are too stupid to understand the reasonable intentions of the employer. The upshot, of course, is that employees are free to disparage customers and co-workers and disclose confidential, non-public information with relative impunity.