On August 18, 2011, the National Labor Relations Board’s (“NLRB”) Office of the General Counsel released a report discussing the outcome of fourteen cases that its Division of Advice has investigated this year involving social media use in the employment context. While the report does not reflect actual decisions of the NLRB, it does indicate the thinking of the NLRB’s Chief Attorney, who sets guidelines for what cases will be presented to the NLRB for litigation and decision. In releasing the report, Acting General Counsel Lafe Solomon stated, “I hope that this report will be of assistance to practitioners and human resource professionals.”
In furtherance of Solomon’s goal, we have identified the major takeaways of this report, which can be divided into two categories:
First, when does employee social media use rise to the level of concerted activity that falls under the protection of the National Labor Relations Act (“NLRA”)? The various decisions chronicled in the report provide some guidelines. To begin, social media use is more likely to qualify as protected concerted activity where the employee discusses the terms and conditions of his or her employment in a manner that is meant to induce or further group action. The General Counsel appears more inclined to characterize social media use in this fashion when it either is directed to fellow co-workers, or grows out of an earlier discussion about terms and conditions of employment among co-workers.
On the other hand, employee social media use is unlikely to rise to the level of protected concerted activity where it is best characterized as an individual complaint about working conditions specific to the employee, and is not directed to co-workers or meant to induce group action.
The report also suggests that employee comments that are “maliciously false,” a seemingly high standard, will not be protected under the NLRA and that offensive or inappropriate comments about an employer’s clients are also unlikely to be protected.
Second, where will the General Counsel draw the line between a valid and invalid employer social media policy? The report suggests that social media policies will be found to be invalid where they would effectively prohibit employees from engaging in protected activity. For example, the General Counsel found a social media policy to be overbroad where it prohibited “inappropriate discussions” about the company, its management, or its employees because this prohibition encompassed protected concerted activity.
Employers should not only avoid such overbroad prohibitions, but should also consider including a disclaimer in their social media policies specifically indicating that none of the prohibitions contained therein should be interpreted to interfere with employee rights under the NLRA.
At the end of the day, situations must always be examined on a case-by-case basis. However, as the General Counsel investigates more cases and continues to issue guidance, and as the NLRB issues case decisions, the law in this area will quickly develop and produce more tangible guidelines for employers to consider.