NLRB General Counsel Issues Report on Social Media

On May 30, 2012, the National Labor Relation Board (NLRB) issued a Report on social media policies.  The NLRB’s role is to protect the rights of private sector employees to unionize and to participate in activities to improve wages and working conditions.  Among protected activities are employees’ rights to discuss wages and working conditions and to seek help from third parties concerning working conditions.  Since January 2012, the NLRB has been studying employers’ use and enforcement of social medial policies, and specifically reviewing cases where employees were terminated for posting on facebook or similar websites about their workplaces and/or supervisors.  

In the May Report, the NLRB found that social media policies that prohibit employees from discussing subjects protected by the National Labor Relations Act (NLRA), such as wages and working conditions, are potentially unlawful.  In the Report, the General Counsel of the NLRB analyzed the social media policies of 7 largeUSemployers and found that portions of 6 of the 7 employer’s policies violated the NLRA because the provisions were drafted such that the language could be construed by employees as prohibiting discussions about wages and working conditions with co-workers and third parties.  The Report also specifically found that policies that discourage employees from “friending co-workers” were unlawful because such policies might discourage communication among co-workers, and thus interfere with activities permitted by the NLRA, and that policies that prohibit employees from talking with the media are unlawful because employees have a protected right to seek help from third parties regarding their working conditions, which includes going to the press.

The NLRB Report is a reminder that all employer policies need to be narrowly tailored to serve the employer’s needs and that any policy that seeks to restrict employee communications and/or activities cannot impinge upon employee rights under the NLRA.

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