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. Lawful Consumable Products or Activities Laws . Employers that use the web or social media sites to screen applicants or to monitor employees might also uncover information about an individual engaged in alcohol use, marijuana use, smoking, or other lawful activities that an employer might disagree with or prefer the individual not do. However, Minnesota law prohibits employers from refusing to hire an applicant or taking adverse action against an employee for the consumption of lawful products, such as alcohol, marijuana, or tobacco, away from work during nonworking hours. [See Minn. Stat. § 181.938, Subd. 2]. Many other
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