On May 30, 2012, the NLRB’s General Counsel’s Office issued its third Memo addressing social media issues. This one is devoted entirely to its position on the lawfulness of various typical social media policy provisions. Hoping that this third General Counsel Memo would provide greater clarity on the Board’s regulation of social media policies, I sat down and read it and, quite frankly, came to the conclusion that the Memo only adds to employers’ confusion on what they can and cannot include in their social media policies — even though the GC took the unusual step of appending to the Memo a social media policy that it considered entirely lawful.

Having spent a fair bit of time pondering the significance of this Memo, I have arrived at this conclusion: Though I am pleased to have a policy that the General Counsel’s office has endorsed, the highly nuanced distinctions made between policies considered lawful and unlawful are baffling.

Here are a few examples:

Regarding defamation:

LAWFUL:

Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers people working on behalf of [Employer] or competitors.

UNLAWFUL

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

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