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Employment Blog

NLRB Issues Another "DISH" appointing Social Media Decision

Authored by Ruder Ware Attorneys
Posted on January 25, 2013
Filed under Employment

In a rerun of a tired episode we've all seen before but wish to forget (e.g., like any episode of Three's Company, however, regrettably, there's a fan club), a National Labor Relations Board (Board) administrative law judge has once again determined that a company's social media policy is illegal this time, it was DISH Network's policy that violated the National Labor Relations Act. DISH Network's social media policy reads, in pertinent part, as follows:

DISH Network regards Social Media blogs, forums, wikis, social and professional networks, "as a form of communication". When the company wishes to communicate publicly it has well-established means to do so. Only those officially designated by DISH Network have the authorization to speak on behalf of the Company through such media.

You may not make disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their products/services.

Unless you are specifically authorized to do so, you may not participate in these activities with DISH Network resources and/or on Company time.

According to the Board's administrative law judge, DISH Network's social media policy was unlawful on two grounds. First, it banned employees from making disparaging or defamatory comments about DISH Network, which, according to the Board, without further clarification or "examples" of defamatory comments that would violate the policy, would reasonably be construed by employees to prohibit or "chill" activities protected by the National Labor Relations Act.  Believe it or Not (in my humble opinion, Ripley's Believe It or Not reruns, much like the Board's recent social media decisions, is something else we could stand to do without although I'm admittedly a fan of Dean Cain). Second, according to the administrative law judge, the policy is unlawful because it bans employees from engaging in negative electronic discussion during Company time, without clearly conveying that solicitation may still occur during breaks and other non-working hours.

Social media policies will continue to receive close scrutiny by the Obama Board. Existing social media policies should be reexamined, and any first-time social media policies should be crafted, while carefully considering the philosophy to which the Board now subscribes (pun intended).