Employees’ Use of Social Media and the NLRA: Practical Law Toolkit

October 30, 2014

Practical Law logo newEmployees are increasingly using various types of social media to discuss workplace issues, ranging from generalized gripes about their jobs to specific criticism of supervisors and working conditions. Employers are naturally inclined to respond these comments and complaints, but with little legislation, court precedent or agency guidance to rely on, employers face a challenge to understand how they may lawfully regulate their employees’ social media use.

The National Labor Relations Board (NLRB), which enforces the National Labor Relations Act (NLRA), became the first federal agency to decide how employees’ social media use fits in existing labor and employment laws. The NLRB made national headlines in late 2010 when its Office of the General Counsel instructed an NLRB regional office to prosecute an unfair labor practice (ULP) complaint against an employer that disciplined an employee for posting comments critical of her supervisor on Facebook allegedly in violation of the company’s internet and blog posting rule. The NLRB considered the posting protected concerted activity. The case ultimately settled, but the media attention spurred:

  • Many more employees, both unionized and nonunionized, to file ULP charges with the NLRB challenging:
    • employers’ social media-related policies; and
    • discipline that employers imposed for employees’ social media use.
  • The NLRB’s then Acting General Counsel to:
    • require that NLRB regional directors submit all ULP charges about employer rules and discipline related to social media to the NLRB Division of Advice in the NLRB Office of General Counsel so the NLRB could develop prosecutorial standards for these types of cases; and
    • issue three reports summarizing the NLRB General Counsel’s Office’s guidance on which social media-related ULP charges against employers the NLRB regional directors should prosecute.

The NLRB’s Office of the General Counsel continues to issue advice memoranda providing insights about why the NLRB does or does not prosecute various social media-related ULP charges. The panel (Board) heading the NLRB’s judicial functions is issuing binding precedent that adopts or rejects the NLRB General Counsel’s ULP analysis and defines the rights of:

  • Employers to regulate employees’ use of social media.
  • Employees to engage in protected concerted activity on social media.

This Toolkit provides resources to assist employers in:

  • Understanding these significant developments.
  • Developing policies and practices to:
    • reduce chances of facing NLRB ULP litigation; and
    • comply with the NLRA, as the Board refines its precedent in this developing area of law.

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