Acting NLRB General Counsel Lafe Solomon has issued a report on social media cases. Anyone who fails to consider the NLRA in general and the concept of protected concerted activity in particular when crafting and enforcing social media policies for employers is missing a major issue. This report (downloadable here) does a good job of defining the area.

I think I'm getting a clearer picture of the NLRB's direction on employee off duty use of social media (blogs, tweets, etc.). There are two areas of concern. The first is overbroad policies which chill employees exercise of section 7 rights. Essentially the Board will assume intimidation occurs if the policy arguably discourages employee discussion of otherwise protected issues. Employers with overbroad social media policies will likely find the NLRB believes such a policy, even if not enforced is a basis for objecting to an employer won representation election. Its pretty clear that this is a major new problem in an organizing drive. The second point is whether the medium actually changes the analysis of what conduct is protected. It really shouldn't. The Board in refusing to issue a complaint is a recent case involving a reporter is illustrative. The reporter's tweets in issue can be found here. The NLRB refused to issue a complaint because the reporter's comments were not protected. Even though the newspaper had no social media policy, the reporter's discharge was lawful because it was based on comments entitled to no protection. The bottom line is there is danger for an employer which has a social media policy, and it will be closely scrutinized by the NLRB for its chilling effect. But, even in the absence of such a policy, an employer would remain able to discipline employees for statements which are unprotected either because they do not relate to an exercise of a section 7 right, or because they were not concerted.

The Chicago Regional Office of the NLRB has issued a complaint against a luxury car company for firing an employee who posted a "concerted" protest about a promotional event which could adversely affect compensation for sales employees. Our previous posts on this issue are here. This is one area of law that has evolved rapidly. Employers should seek legal advice before making employment decisions about computer use/social media or blog postings. It isn't as simple as conventional wisdom may suggest.

A Facebook post by an employee of a non-profit employer criticized the staff for not doing enough to help the clients served by the organization. The post drew comments from five other employees who defended their job performances and criticized terms and conditions of employment. The employer discharged the five for harassing the original poster. The NLRB issued a complaint alleging the activity discussing workplace terms and conditions was protected concerted activity. A trial is set for June 22. A previous case against a different employer settled.

Protected Concerted Activity exhibited in Youtube animation. Hat tip to Workplace Prof Blog. Enjoy!

The Hartford, CT, Region of the NLRB has issued a complaint in a case involving the termination of an employee who posted negative comments on Facebook about her supervisor. The Region's investigation determined the employee's remarks posted to her personal Facebook page from home which drew comments from co-workers supporting her assessment of the supervisor was protected concerted activity. The Region also determined the company’s blogging and internet posting policy blanket provisions, (1) prohibiting employees from making disparaging remarks when discussing the company or supervisors and (2) prohibiting employees from depicting the company in any way over the internet without company permission, interfered with employee rights to engage in protected concerted activity. At this stage these claims are just allegations, but employers should take note these allegations are likely to receive sympathetic treatment by the current NLRB. Previously the Office of General Counsel had issued an advice memorandum approving a narrowly crafted internet non-disparagement policy. The acceptible policy prohibited the following: "Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects."

You see occasional news references for applicants and employees getting in trouble with employers for things posted on social media. The NLRB recently issued a complaint against an employer who disciplined an employee for for posting negative comments about a supervisor on her Facebook page. The NLRA protects employees who discuss the terms and conditions of their employment with co-workers and others. The NLRB just announced the case has settled and the employer has agreed to revise their social media and internet policies revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers. Employers should review these policies to ensure there is not a problem like this which could result in a legal challenge.