The National Labor Relations Board (“NLRB”), the federal agency responsible for enforcing the National Labor Relations Act (“NLRA”), has recently been pursuing alleged violations of the NLRA arising out of the social media policies and practices of employers. The NLRB’s Chicago Regional Office issued a complaint on May 20 against a car dealership alleging that the dealership violated the NLRA by terminating an employee who had criticized the quality of food and beverages at a dealership promotional event on his Facebook page, which was accessible by other employees of the dealership. The Chicago complaint is the latest action by the NLRB in its efforts to protect employees’ rights to engage in protected “concerted activity” under the NLRA. The NLRB’s Buffalo Regional Office issued a complaint on May 9 against a New York non-profit alleging that the non-profit violated the NLRA by terminating five employees who had complained about their working conditions in a Facebook discussion. Last November, the NLRB’s Hartford Regional Office issued a complaint against a medical transportation company, contending that the company’s termination of an employee for disparaging a supervisor on her Facebook page was illegal, as was the social media policy that the company acted upon in terminating the employee.

Nutter Notes: The NLRA’s protection of concerted activity extends to all workplaces – unionized and non-unionized – including state- and federally-chartered depository institutions. Many non-union employers incorrectly believe that the NLRA does not apply to non-union employers. In each of the cases cited above, the NLRB has taken the position that the employer’s limitations of an employee’s right to communicate about the workplace using social media was overly broad, and violated the employee’s right to engage in protected “concerted activity” under the NLRA. Social media policies that, for example, prohibit an employee from “disparaging” the bank or its supervisors or co-workers on a social media site likely would be viewed as unlawful by the NLRB, and the discipline or termination of an employee for violating such a policy likely would be viewed as unlawful as well.