The National Labor Relations Board’s Acting General Counsel, Lafe Solomon, today released a report, which summarizes the outcome of investigations into cases involving involving the use of social media and employer media policies. Acting General Counsel Lafe Solomon stated his belief that the report will be of assistance to legal practitioners and human resource professionals.
In four cases involving employee use of Facebook, the NLRB Division of Advice found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. Therefore, the employees’ actions were permisisble under the NLRA, and employer discipline was an unfair labor practice.
In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected. In these situations, the employees’ actions were only related to personal goals and not for the benefit of the group. Thus, they were not concerted.
In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. The policies in question could be read to prohibit protected concerted activity of employees to discuss, and perhaps seek to change, terms and conditions of employment for a group. Thus, they chilled protected employee rights.
A final case involved an employer’s lawful policy restricting its employees’ contact with the media. In this situation, the policy only prohibited conduct that could not possibly be considered protected concerted activity.
The report provides needed clarification of proper employer policies and practices regarding employee social media use under the NLRA. The report may be obtained from the NLRB website.