These clauses exclude protected Section 7 activity from the scope of a social media policy. So held the U.S. Court of Appeals for the Second Circuit when recently affirming the National Labor Relations Board's ("NLRB" or "the Board") decision in Three D, LLC (Triple Play), 361 … . 154 (12/17/17). . The right to collectively bargain, unionize or take any other concerted activity comes from Section 7 of the NLRA. Section 7 and Social Media. Confidentiality of Complaint Investigations. . to engage in. . By blocking all access to social media by employees, an employer may run the risk of violating federal labor laws. Employees (but not managers) are protected by Section 7 of the NLRA, whether or not they are members of a union. concerted activities.”28 NLRA Section 8 prohibits employers from interfering with these and other Section 25 Shea Holtz, THE DEBATE ABOUT BLOCKING SOCIAL MEDIA IN THE WORKPLACE to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRB conducts its examinations of social media policies in the context of NLRA Section 7 which states that “[e]mployees shall have the right . The underpinning for the Board to review employer social media policies is found in Section 7 of the National Labor Relations Act, which states in relevant part: Employees shall have the right . The Office of the General Counsel to the NLRB recently released an Advice Memorandum shedding new light on the types of social media rules that are permissible in the wake of the Board’s December 2017 ruling in The Boeing Co, 365 NLRB No. Although (per the NLRB) a savings clause will not cure an otherwise unlawful and overbroad policy, it might cure a slightly flawed policy, and there is no downside to including it. Obscenities alone—even when viewed by an employer's customers—do not deprive employees engaged in protected concerted activity of the National Labor Relations Act's ("NLRA" or the "Act") protections. . In the United States, under Section 7 of the NLRA, any monitoring of social media use (and related policies) must account for the rights of workers to engage in protected concerted activities. But employers rarely face Section 7 issues since claims under Section 7 must be asserted in charges filed with the National Labor Relations Board (“NLRB”), and few employees do so. Do Social Media Policies Violate Employees' NLRA Section 7 Rights? Employers—whether their workforce is unionized or not—must consider potential liability under the National Labor Relations Act (“Act”) when promulgating social media policies. In that case, the Board set a new standard for evaluating the lawfulness of workplace rules under Section 7 of the NLRA. The following strategies can help reduce the likelihood of a lawsuit or regulatory action due to a violation of Section 7 of the NLRA associated with employee use of social media: Review employment policies relating to social media. The NLRB has also been clear that blanket social media policies must respect the protected activity of employees to discuss labor concerns. In the end, social media policies are not a "one size fits all" proposition. . Off-duty access to the company's facilities isn't the only place where your business might need a Section 7 exception. 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