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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
Section of Labor and
Employment Law
American Bar Association

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
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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