National Labor Relations Board ("Board") Acting General Counsel Lafe E. Solomon recently issued a report reviewing Board decisions involving employees' use of social media. The report recognizes the emerging issues concerning employee activity on sites such as Twitter, Facebook, and YouTube and the difficult task facing employers in lawfully regulating such activity. Solomon issued the report to encourage employer compliance with the National Labor Relations Act, which guarantees employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The Board has found that some social media policies, and certain related discipline of employees, impermissibly restrict concerted employee activity.
To provide employers with guidance in this developing area, the report reviews Board decisions describing both acceptable and unacceptable employer social media policies. For example, an employer's internet and blogging policy that prohibited employees from making any disparaging comments when discussing the company or the employee's superiors, coworkers, and/or competitors, without any explicit exception for protected, concerted activity, was found unlawful. In contrast, a policy precluding employees from pressuring coworkers to "friend" or communicate with them via social media was deemed lawful because it was sufficiently specific and applied to harassing conduct.