In the past year, the National Labor Relations Board’s (NLRB) consideration of social media cases has expanded considerably. Until recently, employers had little guidance on what constituted protected union activity in the context of social media. In July, however, the NLRB clarified its position on acceptable workplace social media policies and practices when the Division of Advice concluded in three memoranda that in certain circumstances, employees posting comments about their employment on social media sites may not be engaged in concerted, protected activity. In each of the three cases, the Division of Advice assessed whether the activity was “engaged in with or on the authority of other employees, and not solely on behalf of the employee himself.” The first and second Advice Memoranda concluded that employees who communicated about work through social media with only friends and family were not protected from dismissal by the National Labor Relations Act (NLRA) because the employees were not seeking to “initiate or induce or to prepare for group action.” The third memorandum concluded that an employee was not engaged in protected, concerted activity when he posted profane comments on his Facebook page that were critical of store management, because the employee’s comments expressed “an individual gripe” rather than a logical outgrowth of prior group activity or an effort to induce co-workers to engage in group action. On August 18, 2011, the Acting General Counsel of the Board issued a report summarizing recent case developments arising in the context of social media. The cases cover emerging issues such as the protected and/or concerted nature of employees’ Facebook and YouTube postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules.

TIP:   Because the NLRA applies to both union and non-union employers, these memoranda are useful guideposts for all employers who may be faced with the decision to discipline or terminate an employee based on his or her offensive work-related statements on social media outlets. Employers should review their social media policies to ensure that they do not run afoul of the NLRA, and exercise caution in making employment decisions based on employees’ use of social media.