October 30, 2014
Employees 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.
- Disciplining Employees for Social Media Posts in View of the NLRA
- Electronic Workplace Monitoring and Surveillance
- Employee Handbooks: Best Practices
- Employee Rights and Unfair Labor Practices under the National Labor Relations Act
- Privacy in the Employment Relationship
- Social Media Risks and Rewards
- Social Media Policy
- IT Resources and Communications Systems Policy
- Company Social Media Use Guidelines
- Social Media Guidelines (Public Company Short Form)
- Social Media Guidelines (Public Company Long Form)
- Disciplining Employees for Social Media Posts Checklist
- Employees and Social Media: Company Best Practices Checklist
- Webinar: Employment Practices Facing NLRB Scrutiny (featuring the NLRB’s Acting General Counsel)
- Creating and Implementing Employee Social Media Policies: Expert Q&A
- Whether Unionized or Not, Employers Must Ensure Their Employment Policies Comply with the NLRA
- Requiring Blog Post Viewpoint Disclaimer Lawful; Handbook Confidentiality Provisions and “On Duty” Restrictions Unlawful: NLRB General Counsel’s Office
- Union Poster Campaign Suggesting Franchisee Sells Contaminated Food was Lawful: Supervisors’ Endorsement of Facebook Harassment was Not: NLRB
- “Liking” a Comment on Facebook Can Be NLRA-protected Concerted Activity: NLRB
- NLRB Invites Briefs on Employees’ Rights to Use Employers’ Electronic Communications Systems for Section 7 Activity
- Discharge, Overbroad Social Networking and Off-duty Access Policies Compel New Union Election: NLRB
- Employer’s Suggestion it Knew About Employee’s Facebook Posts Does Not Permit Inferences of Protected Activity or Unlawful Retaliation: NLRB
- Union Need Not Disavow Non-agent’s Threats on Union’s Facebook Page: NLRB
- Warning Against Inadvertently Disclosing Confidential Information Is Lawful: NLRB General Counsel’s Office
- Facebook Survey Firing Lawful; Unprotected Comments Prompted Discharge: NLRB General Counsel’s Office
- NLRB General Counsel’s Office Pans Electronic Communications and Social Media Policies; Notes Implications if Register Guard is Overturned
- Social Media Policy’s Ban on Postings with Staff Photos, Confidential Information and the Company’s Name or Logo Is Unlawful: NLRB General Counsel’s Office
- Social Media Policy Prohibiting Use of Company Logo, Sharing Videos or Photos of Workplace is Unlawful: NLRB General Counsel’s Office
- Business-Use-Only Electronic Media Policy Is Lawful; Special Rule Restricting Union Business on E-mail Is Unlawful: NLRB
- Gripes to Coworkers and Sarcastic Demand to Be Fired on Facebook Not Protected Concerted Activity: NLRB General Counsel’s Office
- Employee’s E-mail and Facebook Post Criticizing Working Conditions and Publicizing Past Union Experience Were Protected Union Activity: NLRB
- Facebook Complaints about Supervisor Were Concerted and Protected; Employer Cannot Claim Entrapment: NLRB
- Group Griping on Employees’ Private Group Facebook Page Is Protected Concerted Activity: NLRB General Counsel’s Office
- Unpopular Employee’s Facebook Post Unprotected by NLRA; Some Employer Policies Implicating Employees Use of Social Media Unlawful: NLRB General Counsel’s Office
- Employees’ Facebook Posts about Coworkers Job Performance Criticisms was Protected Concerted Activity: Facebook Firings Unlawful: NLRB
- Facebook Firing Lawful; Employer’s “Courtesy” Rule Prohibiting Disrespectful Speech Was a ULP: NLRB
- NLRB Invalidates Electronic Posting Rule in First Published Opinion Concerning Employers Limiting How Employees Use Social Media
- NLRB General Counsel Issues Third Report on Employees’ Use of Social Media
- NLRB General Counsel Issues Second Report Concerning Restrictions on Employees’ Use of Social Media
- NLRB General Counsel Issues Report on Emerging Issues Involving Employee Use of Social Media
- NLRA Does Not Protect All Employee Comments in Social Media: NLRB General Counsel’s Office