We have been following actions taken by the National Labor Relations Board (“NLRB”) in the emerging world of social media (Social Media Posts and Concerted Activity). In an effort to offer guidance to employers about developments arising in the context of social media, the NLRB’s Acting General Counsel issued a report discussing the Board’s positions in various cases presented to the Board that involved employee use of social media or social media in the workplace.
The report reviews several cases of an employee’s use of social media to discuss or gripe about the workplace. In each case, the General Counsel’s office examined whether the conduct touched upon the workplace and then focused on whether the employee was engaged in protected concerted activity. In the case studies presented, if the employee was acting alone, the conduct did not rise to the level to be protectable under the law. If, however, the employee engaged in an on-line conversation with other employees, such as having a Facebook conversation about the terms and conditions of employment, the conduct was found to be protected concerted activity. Thus, the take-away from this portion of the report is that the NLRB will not assume that employee use of social media is automatically concerted activity, but rather will look at factors such as whether other employees posted comments in response or whether the initial post solicited aid from fellow employees.
The report also discussed whether certain workplace social media policies were overly broad, where the policy was used to discipline or discharge an employee for making negative comments about the employer in social media. Not surprisingly, where a policy could be interpreted to prohibit employee discussion of wages or other terms and conditions of employment, it was found to be over broad. However, a policy that restricted an employee’s right to have discussions with the media where it sought to ensure a consistent, controlled company message and limited employee media contact to the extent necessary to comply with the policy, was permissible. Nonetheless, employee contact with the media could not be prohibited with respect to discussions about wages or terms and conditions of employment.
Given that, so far, almost all of the social media cases have been settled prior to any court or administrative hearing, the NLRB’s investigations and charges have taken on a great significance in this area of the law. With this report, the NLRB has indicated that it will remain active in reviewing an employer’s response to an employee’s use of social media but has now provided guidance as to the contours of its enforcement.