You may have noticed that a new ruling by a federal appeals court appears to call recent social media decisions by the National Labor Relations Board into question. And you may be asking as a result: What do I do now about guiding and/or limiting our employees’ use of social media? Read on.

What happened: The District of Columbia Circuit Court of Appeals said that the way President Obama appointed three people to the NLRB in January 2012 violated the constitution. Because the NLRB previously had only two members, one short of a quorum, new appointments were necessary for the Board to be able to make any decisions.

Dead letters?
And so, if the three recently named NLRB members can’t be members after all, what happens to the board’s decisions over the past year? Are they all dead letters, including the key decisions on employees’ use of social media?

Not necessarily. For one thing, legal experts aren’t absolutely certain that all the NRLB’s decisions over that period would be thrown out, even if the appeals court’s ruling were upheld. And that isn’t a sure thing. The Supreme Court is likely to decide the appointments question at some point.

So what’s the best course for employers, while waiting for the legal dust to settle?

Proceed as previously
It’s probably safest to behave as if the NLRB’s social media decisions continue in force. Those decisions generally tell employers not to implement overly broad policies limiting employee use of social media.

Under the National Labor Relations Act, which the board enforces, employees of all organizations — not just unionized ones — have the right to engage in “protected concerted activity” concerning their wages and conditions of work. The NLRB’s recent social media decisions have interpreted how and when employees’ comments via social media add up to protected concerted activity.

Basically, the NLRB has been telling employers NOT to try to stop employees from saying anything critical about the company on social media. Many kinds of critical comments about the employer or its agents are part of concerted activity. Go here for more details on what kinds of critical social media comments you shouldn’t make off-limits.

You have rights, too
On the other hand, the NLRB has pointed out that employers still have a number of rights regarding employees’ use of social media.

You can, for instance, require that employees refrain from:

  • making comments that are discriminatory, harassing, or threatening
  • “ranting” abusively about personal grievances at work that have little to do with general working conditions
  • giving away confidential company information
  • using company logos or trademarks for their own commercial purposes, and
  • making it appear that they are speaking for the company when they are not.

What policy should do
At the end of the day, no matter how the question of the NLRB appointments is decided, you are probably going to want to have a policy on employee use of social media.

And that policy is going to have to balance employees’ rights to engage in “protected concerted activity” with your rights to prohibit the kinds of social media conduct that would break other laws or damage your company’s legitimate interests.

If you start with what the NLRB has already decided, you probably won’t go far wrong — even if you do have to adjust your policies and practices in the future to take account of legal developments affecting the Board.

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