National Labor Relations Board ("NLRB") Acting General Counsel Lafe E. Solomon recently issued a second report reviewing fourteen NLRB decisions involving employee use of social media and online communications. The report supplements a prior report issued last year by the NLRB. A summary of the prior NLRB report can be found here.
In the summarized decisions, the NLRB continued its practice of distinguishing between employees who use social media to engage in concerted activity such as discussing terms and conditions of employment and employees who use social media to simply express personal gripes or rants about their employers. Employees in the former group were found to be protected by the National Labor Relations Act ("NLRA"), whereas employees in the latter group were not protected by the statute.
The NLRB report also provides guidance for employers drafting social media policies. In one decision cited in the report, the NLRB rejected as overbroad a social media policy that barred "defamatory" or "disparaging" online postings about an employer or its employees. The NLRB explained that such "defamatory" postings could include statutorily protected criticism of the employer's labor policy or treatment of its employees. By contrast, the NLRB upheld a policy that barred postings containing statements that were slanderous, threatening, or harassing in violation of the employer's workplace policies against harassment and discrimination.
In light of these decisions, employers should look carefully at their social networking and disciplinary policies to ensure compliance with the NLRA.
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