do about this?”, the employee’s less-than-flattering initial post, along with the other employees’ comments, are likely protected. Even if no such response is generated, however, if the post is made to a group that includes co-workers of the poster, chances are the NLRB will consider that concerted and thus protected activity. Not only is it unlawful for an employer to take adverse action against an applicant or employee because of Section 7 activities, the mere maintenance of a work policy or rule that chills Section 7 rights may amount to an unfair labor practice, even without evidence of policy enforcement. While the NLRB recognizes an employer’s right to maintain discipline and productivity in the workplace, it will find a policy to be unlawful if it negatively impacts an employee’s ability to exercise his or her Section 7 rights. Just this past year, the NLRB set a new standard for reviewing workplace policies. Under the new standard, an employee can demonstrate an employer’s policy has a “reasonable tendency” to chill workers from exercising their rights “if an employee could reasonably interpret the rule to have a coercive meaning.” This new, much lower threshold has the potential to invalidate a wide range of workplace rules and will likely make it more difficult for employers to draft workplace policies. The NLRB had previously been focusing its enforcement efforts on broad policies that could be construed to limit: 1) critical statements about the company or managers; 2) discussion of wages, hours, and other terms and conditions of employment; and 3) discussions with union representatives and coworkers. An employer thinking of developing a social media policy (or re-evaluating its current one), thus, has a number of factors to consider. First, the employer should determine whether its business interests necessitate such a policy. Do the risks associated with having a policy outweigh the risks of going without one? If a policy is necessary, it is important to draft carefully and consult with an attorney. A lawful policy has clarifying language that restricts its scope to non-protected activity and includes examples of covered conduct that is clearly illegal or unprotected.
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