Perhaps you’ve heard: The National Labor Relations Board (NLRB) is out to squash any employee policy that has the potential to stymie union organizing efforts. But that’s what makes this latest ruling so head-scratching. 

For the past two-plus years, the NLRB’s been on a scorched-earth crusade to rid the working world (parts organized and not) of social media policies it views as restricting employees’ abilities to discuss the terms and conditions of their work environments.

For instance, here’s part of a General Motors’ policy the NLRB deemed illegal.

The section:

prohibits employees from revealing non-public company information on any public site, including any topic related to the financial performance of the company, information that has not already been disclosed by authorized persons in a public forum, and personal information about other GM employees such as his or her… performance, compensation, or status in the company.

An administrative law judge (ALJ) said the blanket prohibition could be interpreted as banning discussion of workers’ wages and working conditions.

So after having read that snippet from GM’s policy, see if you can guess how an ALJ would come down on a policy that said this:

the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business.

If you said the ALJ would deem it in violation of the National Labor Relations Act, you’d be wrong.

Subtle differences

If you’re scratching your head trying to figure out what makes one policy OK and the other illegal, you’re not alone. In fact, you’re joined by the rest of the working world.

What this ruling actually does is highlight the somewhat subjective nature of these NLRB rulings.

The ALJ said the second policy — from Landry’s Inc. – didn’t restrict employees’ abilities to engage in discussions about working conditions, because it didn’t explicitly prohibit employees from posting job-related information, instead asking them to merely not create morale problems.

Still, it’s easy to see how a different judge could come down on the other side of the fence using the NLRB’s more commonly used rational with these policies — that the statement could be viewed as restrictive to employees’ rights to discuss working conditions.

After all, couldn’t complaining about only making $35,000 hurt the morale of those making less? And couldn’t complaining about dirty working conditions hurt the morale of the company’s cleaning staff?

This ruling simply further muddies the waters on what employers can put in their social media — and other communication — policies.

Cite: Landry’s Inc. v. Flores

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