NLRB Focusing More on Social Media

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02/23/2012 9:36 AM

The National Labor Relations Board ("NLRB") is spending more time considering social media issues under the National Labor Relations Act (the "Act"). The NLRB’s Acting General Counsel just released a second report on recent social media cases. Employers (union and non-union alike) are covered by the Act and should pay attention to the NLRB’s actions in this evolving area of law.

The majority of these cases address situations in which employees were terminated for comments posted on social media platforms, such as Facebook. These cases focus, primarily, on two separate issues: (1) whether employer policies (such as policies regarding use of social media and disclosure of confidential information) unlawfully restricted employee rights to discuss the terms and conditions of employment with co-workers; and (2) whether employee comments on social media platforms, such as Facebook, constituted protected, concerted activity. Employers who terminate union or non-union employees for conduct that constitutes protected, concerted activity, may be liable for damages and other remedies.

The Acting General Counsel’s report detailed several areas where employers and employees were at odds over use of social media. In one case, an employer was found to have violated the Act by retaliating against an employee for posting comments critical of the employer on Facebook. In that case, the employer’s policy prohibiting employees from disparaging the employer in the media, including social media, was deemed unlawful. Important to this case were the employee’s concerted actions by discussing frustrations with other employees through Facebook. In another case, the NLRB came to the opposite conclusion because the employee was not working in concert with other employees when posting on Facebook.

The NLRB has other decisions based on nuanced factors determined by specific employers’ policies and actions. Crafting a social media or confidentiality policy (or amending an existing policy) can be a delicate process and requires careful balance of an employee’s rights and an employer’s desires. We can assist your company with crafting policies that meet both the needs of your company and the requirements of the Act.

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