NLRB General Counsel Issues Second Report on Social Media Cases

This post was written by Joel S. Barras and Samantha M. Clancy.

The National Labor Relations Board’s (NLRB’s) Acting General Counsel Lafe Solomon recently issued a report on social media cases handled by the NLRB. This second report—he issued his first in August 2011— provides guidance to employers in developing and enforcing social media policies to comply with the National Labor Relations Act (NLRA). Copies of his two memos are available here and here.

The 2012 report reviews 14 “new” cases. Half of the cases involve issues surrounding employer social media policies, and the other half involve employee discharges because of comments posted on Facebook.

The report highlights two guiding principles: (1) employer policies cannot prohibit or restrict “concerted” activities protected by the NLRA; and (2) an employee’s comments on social media are generally unprotected by the NLRA if they are simply “individual” complaints rather than complaints made in relation to group activity among employees.

Extracted from the seven cases that involve social media policies are the following examples of permissible and impermissible elements of social media policies and the following best practices for employers.

Considered Illegal Were:

  • Forbidding employees from making “disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”
  • A policy that “employees should generally avoid identifying themselves as the employer’s employees unless discussing terms and conditions of employment in an appropriate manner.”
  • A policy disclaimer that nothing in it should be construed to prohibit employee rights under the NLRA was not enough to “save" an otherwise unlawful policy.
  • Prohibiting employees from using social media for “unprofessional communication that could negatively impact the Employer’s reputation or interfere with the Employer’s mission or unprofessional/inappropriate communication regarding members of the Employer’s community.”   

Considered Legal Were:

  • Prohibiting employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients.
  • Prohibiting employees from using social media to “post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

Best Practices for Employers:

The General Counsel Office’s heightened scrutiny of employers’ social media policies and the increase in issuing unfair labor practice complaints over discharging employees for employment- related discussions through social media both “tell” employers to scrutinize the language and enforcement of their in-place or newly crafted social networking policies to avoid NLRA pitfalls. 

Following are key principles to keep in mind:

  • The NLRA protects both union-represented and non-union employees. Overbroad policies for non-union workers that restrict their right to discuss wages, hours or working conditions are illegal too.
  • Avoid overbroad policies that prohibit any mention of the employer, coworkers, and wages, hours, and working conditions.
  • Provide definitions and multiple examples of prohibited and permissible conduct.
  • While employees can lose NLRA protection if their statements are disloyal or materially disparage the employer’s business, simple, online “griping” about work may still be protected by the NLRA.
  • A “catch-all” disclaimer will not “save” an overbroad, unlawful policy.
  • As an easy-to-use, ever increasing form of communication, expect increased NLRB scrutiny of social media-related charges to make sure that employers do not interfere with NLRA-protected conduct.
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