• NLRB Counsel Issues Second Report On Social Media Cases
  • February 8, 2012 | Author: Matthew S. Raynes
  • Law Firm: Eaton Peabody - Bangor Office
  • The National Labor Relations Board (“NLRB”) recently released its second report in a little over five months on social media cases. The NLRB press release announcing the new report provides the following summary of its 35-page content.

    To help provide further guidance to practitioners and human resource professionals, NLRB Acting General Counsel Lafe Solomon has released a second report describing social media cases reviewed by his office.

    The Operations Management Memo 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 discharges 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.

    The Acting NLRB Counsel has asked all regional offices to send it cases the regions believe have merit in order to develop a consistent approach.

    Unbeknownst to many employers, the National Labor Relations Act (“NLRA”) covers both union and non-union employers. With respect to social media cases, or “Facebook firings” as a number of them are known, the NLRB has taken the position that comments an employee makes about his or her employer on Facebook or other social media can constitute protected, concerted activity for mutual aid or protection. For example, if an employee posts on Facebook that his supervisor is a real jerk, the NLRB has held that to be protected activity. NLRB regions have likened such comments to employee talk around the water cooler, despite the fact that water cooler talk generally involves just co-workers, not the entire universe of the employee’s Facebook “friends.” The fact that such comments in social media may reach an audience well beyond the employee’s co-workers is a distinction the NLRB has yet to recognize.

    HR professionals have scrambled to update their acceptable use and social media policies in the wake of these NLRB decisions. As this area of the law continues to evolve, it may be best to ensure that employer policies do no harm and leave it at that for the moment. Better to have no policy and act appropriately in response to circumstances as they arise than to have an overly broad policy that may constitute an NLRB violation in and of itself. Trying to get ahead of the curve in this area may be counterproductive at the moment.

    In our experience, employers understandably have little tolerance for employees who disparage the company, their co-workers, or their products while using social media. Until the NLRB refines its position on this issue, either in response to a court decision or on its own, some employers have been willing to assume the risk of dealing with inappropriate behavior promptly and effectively. However, in light of the current state of the law, all employers should consult with legal counsel before taking any employment actions based on comments by employees in social media.