NLRB General Counsel Issues Third Social Media Report: He Probably Doesn't "Like" Your Company's Policy

If you have any questions, please contact Scott P. Horton at 716.843.3949 or shorton@jaeckle.com. 

On May 30, 2012, the Acting General Counsel ("GC") of the National Labor Relations Board ("NLRB" or "Board"), Lafe Solomon, issued his third report on social media cases brought before the agency ("Report"). In two earlier reports the GC discussed an array of NLRB cases involving social media. The most recent Report focuses exclusively on employer policies that address the use of social media by employees. Most of the policies described in the Report were deemed by the GC to violate the National Labor Relations Act ("NLRA" or "Act") by interfering with or potentially "chilling" the exercise of employees' rights under Section 7 of the Act. The GC did, however, find one policy discussed in the Report to be lawful in its entirety.

 

Section 7 of the NLRA grants covered employees the right to engage in "concerted activities" for their "mutual aid or protection." The Act extends such rights to most non-governmental employees, notably including even those who work in non-union workplaces. Section 7's protections do not extend to certain supervisory employees; however, the determination of who is protected can itself be a complex question. Other state and federal laws may also have implications for the drafting and enforcement of social media policies with respect to employers or employees, whether covered by the NLRA or not. Nonetheless, this Alert only discusses issues raised in the Report, which is limited to the rights governed by the Act.

 

 

The GC's Report includes specific examples of various employer policies and rules that the GC concludes are unlawful. Such determination by the GC has the effect of permitting unfair labor practice charges against the subject employer to proceed towards a hearing before an Administrative Law Judge ("ALJ"). Given the facially innocuous policy language involved in most instances, many of the GC's determinations in this area are likely to surprise employers. Several examples are discussed below.

 

 

Consider the following handbook provision: