NLRB Releases Second Report Detailing Social Media Cases
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- Published on Thursday, 26 January 2012 05:08
In order to provide further guidance to employers and human resource professionals, the National Labor Relations Board (NLRB) has released a second report describing social media cases reviewed by the NLRB’s Acting General Counsel. The Operations Management Memo involves 14 cases, half of which involve questions about employer social media policies. The NLRB found that five of the policies were unlawfully broad, one was lawful, and one was found to be lawful after the employer revised the policy. The remaining cases involved terminations of employees after they posted comments to Facebook. The NLRB determined that several of the terminations were unlawful because they flowed from unlawful policies. However, in one case, the NLRB upheld the termination despite an unlawful policy because the employee’s posting was not work-related. The report emphasized two important points made in an earlier compilation of cases: (1) “Employer policies should not 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; (2) 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.”
In light of the evolving nature of social media cases, the Acting General Counsel requested that all NLRB regional offices forward cases which the Regions believed to be meritorious. Approximately 75 cases have been forwarded to date. The report does not name the parties to the cases or their locations; however, the report does demonstrate that social media cases are very fact-specific.
The report also reflects the Acting General Counsel’s interpretation of the National Labor Relations Act as it relates to communication methods that were not in existence when the Act was written. Three cases involving social media questions are currently pending before the NLRB. It is anticipated that the decisions in those cases will provide further guidance for employers on this complicated issue. Information on the three cases may be found: here, here, and here. Read More.