Thursday, January 26, 2012

NLRB's General Counsel Issues Another Memo on Social Media Cases

The Acting General Counsel of the NLRB announced today that he has issued a second memo regarding the interaction of social media policies and the National Labor Relations Act.  According to the Board, the General Counsel's memo is intended "[t]o help provide further guidance to practitioners and human resource professionals" regarding the lawful limits of social media policies.

According to the Board's press release (available here), "The report underscores two main points made in an earlier compilation of cases: 
  • 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."
The Memo discusses 14 cases, seven of which involve questions about employer social media policies. The Board found that five of the seven policies were unlawfully broad, and only one was found to be lawful after it was revised.  It is clear that the Board is taking a narrow view of what social media policies may prohibit. 

For example, in one case, an employer maintained a policy prohibiting employees from "disparaging" the employer in any media. After an employee was notified that she was being transferred to a less desirable position, she "posted a status update on her Facebook page . . . [u]sing expletives, she stated the Employer had messed up and that she was done with being a good employee." The employer discovered the comments and terminated the employee pursuant to its social media Policy. The Board found that the policy and the employee's termination were unlawful.

The General Counsel's Memo suggests that the Board will apply its traditional standards for employee protected activity to employee activity on social media sites.  However, the traditional standards for employee's "water cooler talk" ignores the difference between private, oral communications in the workplace, from written statements available to the general public on the Internet, which can be significantly different from the employer's point of view.  It remains to be seen whether the Board will modify its standards to take into account the differences between social media and in-person conversations.  Until it does, employers should review their social media policies to ensure the policy does not run afoul of the Board's current interpretation of the NLRA.

No comments: