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August 22, 2011

NLRB General Counsel Report

On August 18, 2011, the National Labor Relations Board’s Office of the General Counsel (“Office”) released a report on 14 social media cases reviewed by the Office within the past year.  The report makes clear that the NLRB will continue to closely scrutinize cases involving social media policies.

Section 7 of the National Labor Relations Act (“NLRA”) broadly protects the rights of employees to engage in protected and concerted activity, which includes the rights to discuss pay or other work-related issues with one another, as well as the right to engage in union support, membership, and activities, regardless of whether the employees are currently represented by a union.  As discussed in the report, these protections extend to protected and concerted activity that occurs over the internet through social media, such as posts on Facebook or Twitter.  Whether such comments shared through social media are protected by the NLRB is a fact-specific inquiry.  In the report, nine cases focused on whether employee conduct was protected and concerted activity.  The Office found that four of the cases involved protected and concerted activity, while five did not.  

The Office’s report also reviewed cases that concerned the legality of social media policies in general.   In several of the cases discussed, the Office found that an employer’s social media policies were unlawfully overbroad.  The Office concluded that these policies could reasonably be interpreted as restraining Section 7 activity.  Broad rules precluding employees from discussing terms and conditions of employment, or from sharing information about themselves or fellow employees with each other or with nonemployees, violate the NLRA. Absent limitations or examples of what is covered or excluded, the Office concluded that these social media policies could reasonably be interpreted as prohibiting the employees’ rights to discuss wages and other terms and conditions of employment, and therefore violative of the NLRA. 

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The NLRB is increasingly focused upon discipline issued as a result of social media activities, as well as the legality of an employer’s social media rules and policies.  We are available to advise on how to appropriately respond to employee social media conduct, as well as to review or craft social media policies.