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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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Walmart represents many things to many people. &nbsp;For Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board, it represents the perfect social media policy. &nbsp;On May 30, 2012, the NLRB released the <a href="http://www.scribd.com/doc/95479772/NLRB-on-social-media" target="_blank" rel="noreferrer noopener">third</a> of Solomon's reports on social media and federal labor relations law (read about the first two <a href="http://www.wassom.com/nlrb-releases-detailed-memo-summarizing-its-social-media-cases.html" target="_blank" rel="noreferrer noopener">here</a> and <a href="http://www.wassom.com/new-year-bring-new-guidance-from-nlrb-on-employees-and-social-media.html" target="_blank" rel="noreferrer noopener">here</a>).

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This report focused on seven cases that the Board pursued against employers for allegedly violating these laws. &nbsp;In six of them, Solomon "concluded that at least some of the provisions in the&nbsp;employers’ policies and rules are overbroad and thus&nbsp;unlawful under the National Labor Relations Act." &nbsp;In the last, however--the Walmart case--Solomon found the entire policy lawful, and even attached the entire policy to his report as a model.

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It's notable that that the provisions Solomon found unlawful in these first six policies include some of the most common, and common-sense, provisions in all corporate social media policies. &nbsp;They include provisions on:

prohibiting the release of confidential information of the employer or co-workers;

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As to each of these provisions, Solomon identified the same fault: as written, the provisions were unlawfully overbroad, because an employee could interpret them as limiting their ability to critically discuss workplace conditions and coordinate responses to those conditions with co-workers.

Indeed, after reading the third one of these reports, the theme starts to get a little repetitive: "be careful not to deter your employees from engaging in protected concerted activity." &nbsp;One would be forgiven for thinking, "Ok, we get it already." &nbsp;It's also helpful to remember that these reports are the non-binding advice of one government agency that is implementing a policy distinct from previous administrations, and that may be modified again by future administrations. &nbsp;There have still been very few judicial rulings on these subjects, and even those have been non-precedential.

Nevertheless, to minimize legal exposure going forward, it's instructive to review the policy that Solomon's NLRB finds entirely lawful. &nbsp;What Solomon especially liked about Walmart's policy is that it contains tangible examples of what is and isn't permissible. &nbsp;That helped employees understand that the prohibitions did not extend to protected concerted activity (a.k.a. "Section 7 activity"):

it provides sufficient examples of prohibited&nbsp;conduct so that, in context, employees would not reasonably&nbsp;read the rules to prohibit Section 7 activity. For&nbsp;instance, the Employer’s rule prohibits “inappropriate&nbsp;postings that may include discriminatory remarks, harassment&nbsp;and threats of violence or similar inappropriate or unlawful&nbsp;conduct.” We found this rule lawful since it prohibits&nbsp;plainly egregious conduct, such as discrimination and&nbsp;threats of violence, and there is no evidence that the&nbsp;Employer has used the rule to discipline Section 7 activity.

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Similarly, we found lawful the portion of the&nbsp;Employer’s social media policy entitled “Be Respectful.” In&nbsp;certain contexts, the rule’s exhortation to be respectful&nbsp;and “fair and courteous” in the posting of comments,&nbsp;complaints, photographs, or videos, could be overly broad.&nbsp;The rule, however, provides sufficient examples of plainly&nbsp;egregious conduct so that &nbsp;employees would not reasonably&nbsp;construe the rule to prohibit Section 7 conduct.

To review Walmart's policy in full, go to the last three pages in <a href="http://www.scribd.com/doc/95479772/NLRB-on-social-media" target="_blank" rel="noreferrer noopener">Solomon's report</a>.

<a href="http://www.scribd.com/doc/95479772/NLRB-on-social-media">NLRB on social media</a>

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Emerging Media and Technologies

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Brian D. Wassom

Information Technology Transactions

For Your Social Media Policy, NLRB Says: Think Walmart

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For Your Social Media Policy, NLRB Says: Think Walmart

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