By Jeffrey A. Berman.

Just in time for Thanksgiving, the NLRB is continuing its attack on the common sense provisions contained in many social media policies and employee handbooks.  In a case involving Dish Network, an NLRB Administrative Law Judge struck down several provisions contained in the employee handbook the company used across the country, including parts of the social media provision. 

With respect to the social media provision, the administrative law judge held that the prohibitions against making “disparaging or defamatory comments” about the company and engaging in negative electronic discussion during “company time” violated the Act.   

According to the ALJ, the first provision was analogous to electronic limitations on negative comments that the NLRB found unlawful in two decisions issued in September of this year, one of which merely required employee postings to be courteous and not disrespectful.   In the view of the current NLRB, these types of common sense prohibitions “reasonably tend to chill employees in the exercise of their Section 7 rights.” 

Of course, one must question how telling employees to be courteous and not disrespectful could “reasonably chill” Section 7 rights.  The answer is far from obvious.  This is especially true in view of the fact that the NLRB’s own “model” social media policy prohibits “defamation to a person or people,” a prohibition that looks surprisingly like the Dish Network prohibition against “disparaging or defamatory comments” that the ALJ found violated the Act.  

The ALJ found the prohibition against engaging in negative discussion during “company time” invalid on the ground that it did not “clearly convey” that it did not apply to conduct that occurred during breaks and other non-working hours. 

Two other portions of the Dish Network employee handbook also were found to violate the Act.  The first required employees to obtain prior authorization from management before speaking about the company to the media or at public meetings.  According to the judge, the pre-authorization requirement interfered with employee rights to improve terms and conditions of employment by seeking assistance outside the immediate employee-employer relationship.

The second provision required employees who received phone calls or letters from government agencies to notify a supervisor and forward them to the company’s general counsel.  Relying on one of the two September 2012 NLRB decisions that served as a basis for finding the social media policy unlawful, the ALJ concluded that employees could “rationally” construe this provision as limiting their right to communicate with agents of the NLRB.

Given that the composition of the NLRB is not likely to change in any significant way during the next four years, it may be time for employers to review their employee handbooks, including their social media policies.