NLRB & Social Media: Where Do We Stand For Now?

Contributed by Beverly Alfon

Employers have been struggling with how the National Labor Relations Board’s (NLRB) traditional principles for determining whether employees are engaged in “protected, concerted activity” apply to employees’ social networking activities and their employers’ social networking policies.  In August, the NLRB Acting General Counsel issued a report presenting summaries of recent case developments arising in the context of employees’ use of social media.  All of the cases in the report were based upon requests for advice from regional directors.

Of the cases detailed in its report, the NLRB’s Division of Advice found:

  • Four cases involved Facebook or Twitter posts that constituted “protected concerted activity”
  • Five cases involved social media use that did not warrant National Labor Relations Act protection
  • Five cases dealt with employer social media policies that were found to be overbroad
  • One case concerned an employer’s policy that was held to be valid
  • One case involved a union’s use of YouTube that was determined to be unlawful coercive activity.

Although the division’s “findings” are not binding on either administrative law judges or the NLRB itself, they do provide some guidance. An employee’s use of social media is likely to be considered protected concerted activity if the posts:

  1. Involve the terms and conditions of employment
  2. Constitute an “outgrowth” of an earlier discussion about the terms and conditions of work among co-workers
  3. Involve or are directed to fellow co-workers to invite or induce further action.

An employee’s Facebook or Twitter posts are more likely to constitute protected activity if they involve topics like job performance, staffing levels, protests of supervisory actions, criticisms of an employer’s promotional event that employees believed would negatively impact their sales commission, and shared concerns about income tax withholdings.

Posted complaints about working conditions to non-coworkers are less likely to be found protected by the National Labor Relations Act (NLRA).  Similarly, an employee’s complaints over his or her individual situation are less likely to be deemed as “inducing group action” and are therefore less likely to be protected.  Offensive or inappropriate comments directed at an employer’s clients are less likely to receive NLRA protection.

Social media policies that are narrowly focused are likely to be considered lawful. The decisions indicate that policies which prohibit employees from making disparaging comments about the company or the employee’s superiors, co-workers, or competitors and further prohibit the use of inappropriate or offensive language or action to a client or co-worker which should contain language informing employees that these provisions do not apply to Section 7 activity.

Ultimately, despite the growing number of these social media cases and recent guidance, there are currently no binding decisions on this subject.  The analysis of these situations remains fact-intensive and must be treated on a case-by-case basis.  Employers must continue to be vigilant in ensuring that their policies and practices fall within the evolving parameters of the law.