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41 Lab. & Emp. L. 1 (2012-2013)

handle is hein.journals/laboemplo41 and id is 1 raw text is: loyment FALL 2012 VOLUME 41, NUMBER 1 Section of Labor and Employment Law American Bar Association /A Secton of Labor and Employment Law NLRB Reviews Employer Policies on Social Media, Arbitration By Molly Eastman Editors' Note: On January 25, a Dis- trict of Columbia Circuit panel ruled that the NLRB was without authority to issue decisions because President Obama's recess appointment of three Board members in January 2012 was unconstitutional under the Recess Appointments Clause of Arti- cle II Board Chairman Mark Pearce stated that the Board, which has issued about 200 decisions since January 2012, will continue to issue decisions. As this issue of LEL goes to press, the Board has made no announcement that it will seek review of the decision either by the full D.C Circuit or the Supreme Court. If it wasn't already apparent, it became very much so dur- ing the Section's Sixth Annual Conference: The National Labor Relations Board, the acting gen- eral counsel, and the NLRB's Regional Offices are spending a lot of time deciding whether handbook rules and employ- ment policies violate the Section 7 rights of both nonunion and union employees. Acting General Counsel Lafe Solomon, during his presentation Meet the National Labor Rela- tions Board Acting General Counsel, made clear that he is focused on cases involving social media policies and arbitration provisions. Solomon reiterated that his office is continuing to review all unfair labor practice charges involving social media issues and reminded audience members of his three social media memo- randa that provide a comprehen- sive review of the social media cases, as well as guidance to employers on how to draft lawful social media policies. He opined that, while social media cases are being decided under longstanding principles of the National Labor Relations Act, the NLRB may need to develop new law or extend current legal standards to deal with claims of unlawful surveillance involving social media. He said, [1]t is sur- prising to me that we have not been presented with an unlawful surveillance case since the first Facebook case in October 2010, and he informed the audience that there have been no claims of unlawful surveillance in subse- quent cases because so-called friends of employees have been giving the relevant social media pages to employers on an unsolic- ited basis. Solomon also commented on mandatory arbitration policies in the wake of the Board's 2012 deci- sion in DR Horton, in which the Board held that a waiver of the right of class or collective action litigation is a violation of employ- ees' Section 7 rights to engage in concerted activity. He noted that there are many variations of arbi- tration policies that are alleged to be unlawful, including even those allowing employees to opt out of or opt into mandatory arbitration. He further explained, however, that the only arbitration policy case that has proceeded to complaint continued on page 1O

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