The NLRB’s Aggressive Take on Social Media

Union and non-union employers with social media policies or that are contemplating social media policies should take notice of the National Labor Relations Board’s recent aggressive action of pursuing employers’ social media policy content and any disciplinary action imposed on employees for social media posts. The Board is actively challenging employers whom they feel have violated employees’ rights under Section 7 of the National Labor Relations Act by adopting overly broad social media policies and disciplining and terminating employees for their social media use.

Section 7 applies to both union and non-union employers, but not to public sector employers or railroads. This section protects employees who engage in “protected and concerted activities.” Examples are where employees communicate with other employees or outside individuals about terms and conditions of employment including pay, benefits, and working conditions. Employee complaints via social media may be protected and concerted activity under the NLRA. 

On January 25, the Board’s Acting General Counsel Lafe Solomon issued a second social media report summarizing 14 cases it has decided since the issuance of its August 18, 2011 report. In seven of those cases, the Board examined employers’ social media policies finding five to be overly broad, one lawful, and one lawful only after it was revised. The Board held that policies should include a clear disclaimer that they are not designed or intended to chill or prevent protected activity, and social media use restrictions should be specific so they could not be reasonably interpreted as restricting protected activity. Overly broad policies violate the law regardless of whether the employer has actually taken action against an employee for violating the policy. Employers found to have violated the NLRA may be required to rescind discipline or reinstate terminated employees, to post public notices of violations, and to revise their policies. 

Recent NLRB activity is not the only legal issue employers dealing with social media should consider when adopting or revising a policy. However, this activity has caused the advice for how employers should draft policies on social media use and respond to employees’ use of social media to change.  If you have an existing policy or are considering implementing one, we recommend that you have it reviewed by an MSEC attorney or other legal counsel to make sure that it reflects recent developments. MSEC will continue to update its samples and member guidance on this issue.