gripe with impunity. The decisions em-
phasize that posts which merely reflect
an individual's contempt, or are simply
egregious, with no connection to a shared
concern about working conditions, likely
are not protected speech. Concerted
activity loses protection if it isn't just
inaccurate, but "maliciously false" or
"opprobrious," reflecting a desire to
troubling because they include familiar
provisions that employers rely on to
cover common business concerns. In
Hispanics United, the NLRB ruled the
employer's "zero tolerance" bullying
policy unlawful under Section 8, stating
that "legitimate managerial concerns to
prevent harassment do not justify poli-
cies that discourage the free exercise of
Section 7 rights..." suggesting that any
policy that is so broad or vague that it
may not be clear that it is not intended to
restrict Section 7 rights is unlawful.
However, rules that clarify and re-
strict their scope by including examples
of clearly illegal or unprotected conduct,
such that they could not reasonably be
construed to cover protected activity, are
less likely to be unlawfu1. Examples of
lawful policies include:
tied to a specified business rationale.
cussed in the May 2012 Report and the
only policy found lawful because it is
well-crafted, direct, uses "everyday" lan-
guage, provides definitions supported by
examples, and addresses legitimate goals
with respect to social media, enabling
employees "to differentiate unacceptable
behavior from protected concerted activi-
ties" with no unlawful "chilling" effect.
Although any policy should be
employer-specific, examining Walmart's
1. Tailor policy to company's culture.
terms of employment.
Employers and practitioners should
continue to monitoring developments
and regularly review and update social
media policy as necessary.
federal or state governments or those who employ only
agricultural workers or are subject to the Railway Labor
3 The Supreme Court explained that even "the most re-
a deliberate or reckless untruth." Linn v. Plant Guard
383 U.S. 53 (1996).
5 NLRB, General Counsel: Memoranda OM 11-74 (Aug.
(May 30, 2012). Available at: www.nlrb.gov/reports-
7 358 NLRB No. 164 (Sept. 28, 2012)
8 359 NLRB No. 37 (Dec. 14, 2012) and No. 96 (Apr. 19,
decisions which are issued after a party appeals the
decision of an ALJ.
ments to the NLRB panel were unconstitutional and
therefore invalid. The ruling has the potential to void
all NLRB decisions made in 2012. It will be appealed
to the Supreme Court, but it is unclear when or how
the issue will be determined. Until then, as a practical
matter, employers may want to consider social media
jurisprudence as in effect and applicable.
unauthorized use, theft of publicity, invasion of privacy,
and tortious interference. See Eagle v. Morgan (E.D.
Pa. 2013), PhoneDog v. Kravitz (N.D. Cal. 2011), and
Maremont v. Susan Fredman Design Group (N.D. Cal.
prohibit disclosure of passwords.