On January 25, 2012, NLRB Acting General Counsel Lafe Solomon released a second report describing social media cases reviewed by his office.

The Memorandum covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they were undertaken pursuant to unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

The report highlights two issues that employers need to recognize:

  • Employer policies cannot be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
  • An employee’s comments on social media are generally not protected if they are mere gripes about individual circumstances, which are not made in relation to group activity among employees.

The report represents the Acting General Counsel’s interpretation of the National Labor Relations Act as it applies to new forms of electronic communication. Three cases involving social media questions are currently pending before the Board and those decisions will certainly give further guidance as the application of labor law to social media develops.

The report may be accessed at www.nlrb.gov.