• Labor Board Prosecutor’s Social Media Report Concludes Common Policy Provisions May Be Unlawful
  • March 7, 2012 | Author: Howard M. Bloom
  • Law Firm: Jackson Lewis LLP - Boston Office
  • The National Labor Relations Board’s Acting General Counsel, Lafe Solomon, has issued a second report on social media cases that have been decided by his office.  The January 24, 2012, Report of the Acting General Counsel Concerning Social Media Cases discusses social media policies and chronicles actions taken by the Acting General Counsel’s Division of Advice on unfair labor practice charges involving the use of social media by employees.  Both reports summarize the facts of each of the cases covered, the action taken by the Acting General Counsel, and an explanation of the reason(s) for the action.

    In April 2011, the Acting General Counsel issued a memorandum entitled, “Mandatory Submissions to Advice,” in which he instructed the NLRB’s Regional Directors to submit all “[unfair labor practice] cases involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” to the General Counsel’s Division of Advice for decision on whether to issue an administrative complaint.

    In general, the NLRB’s Regional Directors, who oversee the NLRB’s many Regional offices, decide whether or not an unfair labor practice charge is meritorious.  However, because social media cases must be submitted to the Division of Advice, it is that branch of the General Counsel’s office that determines whether charges in those cases are meritorious, and therefore, whether to issue a complaint. If a complaint is issued, absent settlement, a trial will occur before an NLRB Administrative Law Judge.  Unions, individuals or employers may file unfair labor practice charges alleging the commission of unlawful conduct.

    Guidance on Common Policies
    The January 2012 Report reviews 14 charges, several of which allege that the language of the employer’s social media policy violated the National Labor Relations Act.  One of the cases is particularly noteworthy.  It provides guidance to employers on what the General Counsel’s Office sees as the possible unlawfulness of some provisions that often appear in social media policies.

    In that case, the social media policy required employees who had identified themselves as employees of the employer on social media sites to state, each time they posted, that their comments contained only their personal opinions and did not necessarily reflect the employer’s opinions. The Acting General Counsel found that provision unlawful because:

    . . . requiring employees to expressly state that their comments are their personal opinions and not those of the Employer every time that they post on social media would significantly burden the exercise of employees’ Section 7 rights to discuss working conditions and criticize the Employer’s labor policies, in violation of Section 8(a)(1).

    The same policy also required employees to obtain approval to identify themselves as the employer’s employees on social media sites. The Acting General Counsel also found this provision unlawful because:

    personal profile pages serve an important function in enabling employees to use online social networks to find and communicate with their fellow employees at their own or other locations .... [T]his policy, therefore, [is] particularly harmful to the Section 7 right to engage in concerted action for mutual aid or protection and [is] unlawfully overbroad.

    Another provision of that policy prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department. The Acting General Counsel also found this provision unlawful, stating:

    Employees have a Section 7 right to use their employer’s name or logo in conjunction with protected concerted activity, such as to communicate with fellow employees or the public about a labor dispute. We concluded that this provision of the policy could reasonably be construed to restrict employees’ Section 7 rights to use the Employer’s name and logo while engaging in protected concerted activity....


    Employers should use great caution when writing social media policies.  These policies are receiving great scrutiny by the NLRB, and provisions that may appear harmless on their face, such as those noted above, very well may be seen as otherwise.