The National Labor Relations Board (“NLRB”) has been at the forefront of the clash between the workplace and social media. In 2010, the NLRB staked its claim with a highly publicized complaint against American Medical Response of Connecticut. The NLRB charged AMR with violating Section 7 of the NLRA by discharging an employee for posting disparaging comments about a supervisor on the employee’s Facebook page.
The NLRB’s primary focus on social media issues has been two-fold: (i) whether employee discipline or discharge for social media content violates Section 7 of the NLRA, and (ii) whether employer social media policies chill employees’ exercise of their Section 7 rights and thereby violate Section 8 of the NLRA. Section 7 of the NLRA provides that employees have the right to organize “and to engage in other concerted activities for … mutual aid or protection …” Section 8 of the NLRA provides that any work rule that tends to chill employees in the exercise of their Section 7 rights is unlawful.
Employers looking for guidance in drafting and enforcing social media policies may now reference three separate reports issued by the NLRB’s Acting General Counsel, the most recent of which attaches a complete copy of a social media policy found to be lawful.
In August 2011 (http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) and January 2012 (http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report), the NLRB’s Acting General Counsel issued reports detailing social media cases reviewed by the NLRB. According to the NLRB’s press release accompanying the January 25, 2012 report, the compilation of cases emphasizes two main points regarding social media in the workplace:
• Employer policies should not be so sweeping 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 not made in relation to group activity among employees.
On May 30, 2012, the Acting General Counsel issued a third report focused exclusively on policies governing the use of social media by employees (https://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies). For the first time, the report attaches a complete copy of a policy determined to be lawful.