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Are Vague Social Media Policies a Problem For Public Employers? Indeed, They Are.

By Robin Shea

Many lawyers who represent private sector employers are familiar with the (some might say “harsh”) position on social media policies taken by the National Labor Relations Board during the Obama Administration. The NLRB’s position is that overly vague social media policies have a “chilling effect” on employees seeking to exercise their rights to engage in concerted activity under Section 7 of the National Labor Relations Act.

Under the NLRB’s analysis, social media policies that require “courtesy,” or that prohibit employees from “disparaging” the company or its management, or posting in a way that “adversely reflects on the company” violate Section 7. This applies to both union and non-union employers.

But the NLRA doesn’t cover federal, state, or local government employees, which is great if you represent a government employer . . .

. . . right?

Apparently not. Although public employers do not have to worry about the NLRA, they do have to worry about this little thing called “the First Amendment.”

A recent decision from the U.S. Court of Appeals for the Fourth Circuit, Liverman v. City of Petersburg (Virginia), indicates that there may not be much practical difference between a First Amendment analysis of public employer social media policies and a Section 7 analysis of private employer policies.

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