Tuesday, August 23, 2011

New Guidance on Social Media and the Labor Law

The General Counsel (GC) for the National Labor Relations Board (NLRB) plays a major role in deciding which cases the agency will prosecute and which legal theories it will apply in making those prosecutorial decisions.  This means the GC’s recent analysis of fourteen separate social media cases (NLRB Press Release and link to the GC’s Analysis available here http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases) is highly instructive for the many employers and their lawyers who have been closely watching the NLRB’s enforcement activity in this emerging area of the law. 

The GC’s analysis certainly does not answer every question about the Board’s enforcement in this area, nor does it represent the opinion of any Circuit court faced with a challenge to enforcement of an NLRB decision.  Nevertheless, the published analysis provides key learning points for employers and their counsel to keep in mind when considering the rights and duties of employer and employees where social media comes into play.  Remember that the GC’s analysis applies to unionized and non-unionized workplaces alike.

Some key points from the GC’s Analysis include the following. 

  • An employer may discipline an employee based on social media activity as long as the social media activity does not involve conduct protected by the National Labor Relations Act (NLRA). 
  • To be protected by the NLRA an employee’s activity must be “concerted.” 
  • To be concerted means the employee’s social media post or other activity is made “with or on the authority of other employees, not solely by and behalf of the employee.” 
  • The requirement of concerted activity is no different on social media than in other contexts to which the NLRB has applied this principle. 
  • The NLRB will tolerate a fair degree of distasteful conduct by employees in a social media context, just as it does in other settings.  In one of the cases analyzed, employees’ swearing and sarcasm in Facebook posts did not, according to the GC, result in loss of protection under the NLRA. 

There are more lessons to be drawn from this analysis, including important ones about drafting and enforcing social media and related policies.  We will discuss more of these key points in upcoming Modern Workplace posts. 

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