Richard Rabin Quoted in Compliance Week on Social Media Policies and the NLRB

Richard Rabin, head of the New York labor and employment group at Akin Gump, was quoted in the Compliance Week article “NLRB Push Forces Rethinking of Social Media Policies,” which looks at how the National Labor Relations Board (NLRB) is approaching social media issues and what businesses should know and do about it.

Rabin said several recent NLRB opinions “have caught many by surprise and are counter-intuitive.” He noted there are “NLRB decisions throwing out policies that require employees to treat each other with courtesy and respect, because some protected activity may not always be viewed as respectful. Broad confidentiality provisions could be read as preventing employees from discussing the terms and conditions of employment.” Additionally, he said, non-disparage provisions and bans on speaking with the media are policies that may no longer pass muster with the NLRB.

With all of this in mind, Rabin said companies might want to consider even whether to have a social media policy since it could, given the NLRB’s current approach, chill protected activity: “When you look at most policies, you could arguably find something in there that violates that.”

Rabin added that if recent NLRB cases involving social media “are notable for what you cannot do or say, and there are so many caveats needed when drafting a policy to ensure that the NLRB finds it lawful, a company has to think long and hard about whether they want to have a policy at all.”