NLRB Issues Second Social Media Report

To help provide further guidance to practitioners and human resource professionals, the National Labor Relations Board (NLRB) released a second report describing social media cases that have been reviewed by their Acting General Counsel.
Overall the Operations Management Memo underscores two main points:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion among employees about wages or working conditions.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The report covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful and one was found to be lawful after it was revised.
The remaining cases involved discharge of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.
Given the new and evolving nature of social media cases, the Acting General Counsel has asked all regional offices to send cases that the regions believe to be meritorious to the agency’s Division of Advice in Washington, D.C., in the interest of tracking them and devising a consistent approach. About 75 cases have been forwarded to the office to date. The report, which does not name the parties to the cases or their locations, illustrates that these cases are extremely case-specific.
The report represents the Acting General Counsel’s interpretation of the National Labor Relations Act as it applies to forms of communication that did not exist when the Act was written. Three cases involving social media questions are currently pending before the Board and they will add to the guidance in this developing area of the law.